Kaplan, LA hon

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see donziger

see kill step

oddly not fedsoc vs preska

ted olson praise kaplan

bak

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https://gizmodo.com/the-biggest-climate-trial-of-the-year-was-a-chevron-fue-1846920362

no lnx

the Biggest Climate Trial of the Year Was a Chevron-Fueled ‘Charade’

By Dharna Noor

5/19/21

[Attorney Steven Donziger arrives for a court appearance at Daniel Patrick Moynihan United States Courthouse in Manhattan on May 10, 2021 in New York City.

Photo: Michael M. Santiago (Getty Images)]

After a week of proceedings, the criminal trial for attorney Steven Donziger—who won a multibillion-dollar case against Chevron over pollution in the Amazon rainforest—wrapped up on Monday. In his estimation, the trial was a “charade.” And yet he was relatively pleased with the outcome.

“Given that we stood no chance to win the actual trial, the proceeding could not be better for us,” he said.

Donziger led a case against Chevron on behalf of 30,000 Indigenous people and peasant farmers from the Ecuadorian Amazon. In 2013, he won a $9.5 billion judgment against the energy giant, marking the largest human rights and environmental court judgment in history. Chevron refused to pay and instead put all its energy into going after Donziger in court in what is one of the most outlandish cases to wend its way through the courts in recent memory. Donziger has been under house arrest for going on 22 months, a judge with an industry-friendly record has been handpicked to preside over the proceedings, and the prosecuting lawyer worked until recently at a private law firm with ties to Chevron.

The trial, which began on May 10, focused on misdemeanor charges of criminal contempt against Donziger for disobeying court orders, the charge that landed him in home detention. Specifically, Donziger refused to hand over his laptop, cell phone, and other electronic devices when the court ordered him to so back in 2019. He said doing so would violate his legal clients’ privacy.

If found guilty, Donziger could face up to six months of prison time. He and his lawyers have no doubt he’ll be convicted.

“No justice will be done here,” Martin Garbus, an attorney representing Donziger, said in the courtroom on the first day of the trial.

The criminal charges against Donziger are unusual, as they were brought by a private prosecutor, Rita Glavin, who until March was a partner at the law firm Seward and Kissel. Last year, Seward and Kissel admitted that they’d represented Chevron as a client as recently as 2018, confirming Donziger’s lawyer’s suspicions and posing a glaring conflict of interest. U.S. District Court Judge Lewis Kaplan, who presided over a 2012 RICO case against Donziger, appointed Glavin to bring the charges after public prosecutors refused to do so, a move previously unheard of in the American judiciary.

The contempt trial was overseen by Loretta Preska, the same federal judge who placed Donziger on house arrest in 2019. She was also selected to oversee the criminal case by Kaplan. Handpicking a judge for a case went against the standard process of random assignment that the court normally uses, and Preska’s role an advisor to the pro-business Federalist Society and documented history of ruling in favor of energy companies has raised concerns for Donziger’s supporters.

Paul Paz y Miño, the associate director of Amazon Watch, said that Preska has applied the rules of the court selectively. She invoked them last month in her decision to disallow the criminal trial to be broadcast on Zoom despite clear public interest. Then as the trial was beginning, Paz y Miño said, she invoked court rules when Donziger’s supporters wanted to sit in the part of court designated for journalists.

“She said the Southern District doesn’t allow people who aren’t press in the press area,” he said. “But she had no problem ignoring the rules when the case was assigned to her by Kaplan. ... The hypocrisy is full on display.”

Paz y Miño said Preska’s biases only became more clear as the proceedings began. From the first day, she said that she was not interested in hearing from Donziger’s lawyers about why he refused to turn over his laptop and cell phone—namely that doing so would violate attorney-client privileges. A judge for a related trial ruled that the sanctions Kaplan placed on Donziger were not clear and should be overturned in March, but putPreska deemed all of that irrelevant.

“She said he was given an order by a federal judge, he didn’t comply, he’s held in contempt. She pretty much said everything short of ‘you’re guilty’ on the first day of the trial,” Paz y Miño said.

As the trial continued, Paz y Miño said Preska continued to conduct herself unfairly. He said she only sustained one of Donziger’s team’s objections to the proceedings, whereas she upheld all but one of the prosecution’s.

Kaplan’s role in the trial also made supporters raise their eyebrows. It’s Kaplan’s orders Donziger is being accused of disobeying, so he is the aggrieved party. Despite this, he chose the judge to preside over the case. Further, he has not recused himself from the case, so he could still be in communication with Glavin, the private lawyer prosecuting Donziger.

Donziger’s team believed the trial was so clearly unfair that they spent just 10 minutes on defense arguments on Monday. Donziger himself didn’t even testify in court.

“I just was advised by my lawyers that it would not be a good idea, and as I thought it through, it just didn’t make sense,” he said at a press conference. “It wouldn’t have moved the needle.”

Closing arguments will be submitted in writing in two weeks, and a decision is expected sometime after that. Though Donziger has no question he’ll be convicted, he said the trial could actually help him construct a solid appeal if and when he is convicted because it so clearly demonstrated the reasons that the case was unfairly biased and should be thrown out.

“This trial had already been decided and the purpose of the proceeding was to try to glom on a veneer of due process over a decision that I think was made behind closed doors by judges,” he said, noting the circumstances “seriously strengthen our appeal.”

Support for his plight is also building elsewhere. Last month, U.S. representatives including Rep. Alexandria Ocasio-Cortez and Rep. Cori Bush, sent a letter to Attorney General Merrick Garland asking him to review the case. Whatever the verdict, it almost certainly won’t be the end of the case.

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amazonwatch

on the run from a landmark $9.5 billion judgment in Ecuador, fighting enforcement actions in three countries that threaten strategic company assets, and gearing up for make-or-break appellate hearings does not bode well for the prospects of Chevron CEO John Watson and his management team.

No worries. Chevron got a little help from its friends in the corporate media last week. The resulting echo chamber is a startling reminder that, like the big banks, Chevron is considered by many to be too big to fail. It is clear that business journalists will come out of the woodwork to defend the company from attacks on their own kind, even if the truth about Chevron’s human rights violations is sacrificed in the process.

The lawsuit brought by Ecuadorian rainforest communities against the oil giant is seen not only as a singular threat to Chevron’s bottom line, but a historic symbol for corporate accountability. This is an unwelcome message to the oil-industrial complex which assumes that environmental damage and human rights abuses can be externalized and that justice can be so delayed that affected communities will never receive the redress or remediation they deserve. After all, Chevron has vowed to fight the Ecuadorians “until hell freezes over, and then we’ll fight it out on the ice.”

In a case like this with global implications for the environment, human rights, and corporate accountability, it’s telling to see who Chevron’s bedfellows are.

Over the 21 years of the Aguinda v. Chevronlitigation, the list runs long. It includes people and institutions that have run to the company’s defense, or outright done its dirty work – Ecuadorian government officials, military, judges, junk scientists, convicted felons, the U.S. Chamber of Commerce,and the U.S. Embassy in Ecuador, among others.

We can now add a trifecta of reporters to that list – two of whom have just published new books. These reporters have swallowed Chevron’s narrative raw and whole. Sadly, this is not so surprising, coming as they do fromFortune Magazine, Businessweek, and American Lawyer (the latter considered the right wing litigation bible of corporate America) Roger Parloff, Paul Barrett, and Michael Goldhaber respectively, have been tripping over themselves to promote their books and articles, referencing, cross-referencing, citing, quoting, and linking to each other, to dizzying, albeit deceitful effect.

Let’s focus on Paul Barrett of Businessweek, whose book “Law of the Jungle” (get it, there’s no law in the jungle. Ha!), is a pro-Chevron tour de farce of the Aguinda v. Chevron litigation, as well as Chevron’s countersuit using the RICO statute in New York Federal Court. He plays lip service to one of the indigenous leaders who lost two children due to oil contamination and builds up U.S. lawyer Steven Donziger, only to then take him and his clients down using Chevron’s deceitful narrative. The majority of Barrett’s book is written as if he spent extensive time on the ground in Ecuador, and was at many of the events described. However, he wasn’t.

Barrett watched the documentary film, Crude, by Joe Berlinger. He then wrote as if he was standing right there in front of toxic waste pits, or in the judge’s office, or at the hotel preparing Emergildo Criollo for the shareholders meeting. It’s a deceitful tactic that purports to lend “jungle cred” to Barrett, as if his book is some kind of in-depth investigation from the sweaty Amazon court room or next to rusting Chevron pipelines that siphon off overflowing oil sludge into streams below, to be drunk later by unsuspecting villagers downriver.

Watching another journalist’s film is no substitute for actual reporting. The reality is that Barrett spent precious little time in the Ecuadorian rainforest – two weeks at most. He did not speak to the lawyers for the communities, let alone Donziger, for the book. He never attended even a day of the trial. Barrett speaks no Spanish, so a thorough review of the 200,000 plus Ecuadorian trial record was out of the question. Ultimately, the book is mostly taken from Chevron’s legal briefs.

A revealing example of Barrett’s pro-Chevron bias occurs in chapter two. He begins by describing an entire scene from the film Crude as if he were there. As evidence of his simple acquiescence to Chevron’s arguments, Barrett uses Chevron’s deceptively edited outtakes from the film to paint a sinister scene of Donziger bullying and pressuring a judge. Barrett’s citation is as follows:

We’re going down to have a little chat with the judge. This is something that you would never do in the United States. But in Ecuador this is how the game is played, it’s dirty. We have to – occasionally – use pressure tactics to neutralize their corruption. And today is one of those examples.

Except the actual transcription is as follows:

We’re going to confront the judge who we believe is paid by Texaco. We believe he is corrupt, and we’re gonna confront him, ah, with – with our suspicions about his corruption and let him know what time it is. And, ah, you know, this is something that you would never do in the United States. I mean, this is something you would, I mean, this is just out of bounds, both in terms of judicial behavior, and what – what lawyers would do. But Ecuador, you know, there’s almost no rules here. And this is how the game is played, it’s dirty. And, you know, they’re playing dirty, we’re honest, they’re dirty. They play dirty, we have to occasionally use, um, pressure tactics to neutralize their corruption. And today is one of those examples.

Barrett left out the bolded text above, changing the context and intent of what was said into its opposite. That’s not reporting; that’s hit job journalism.

That is not the only instance where Barrett obfuscates the facts, turning what are decidedly black and white issues into murky grey – another Chevron tactic. One of the company’s trademark products, beside crude, is doubt. Doubt has long been the go-to tool of big business litigators to turn the tables on their adversaries by flipping logic and reason of disciplines like epidemiology on its head. The intentional manipulation of facts creates just enough second guessing of the dangers of chemicals and toxins to allow said guilty company off the hook.

This tactic was used by Chevron in the Ecuador case. What about the causation between sick communities and the waste pits they live on top of? Well, hydrocarbons aren’t necessarily toxic, claims Chevron. According to Chevron’s Manager of Global Issues and Policy, Silvia Garrigo in an interview with 60 Minutes:

“I have makeup on, and there’s naturally occurring oil on my face. Doesn’t mean that I’m going to get sick from it.”

Interesting though, that when you enter a gasoline station in California there’s a sign disclosing that your mere presence at the pump could expose you to carcinogens. But in Ecuador’s Amazon, you can live on top of a Chevron waste pit and any causality link to carcinogens is questioned.

Barrett avoids the truly scandalous and criminal examples of Chevron’s tactics to hide contamination during the Ecuador trial, like swapping toxic soil samples with clean ones, and avoiding sampling at depths at which Chevron knew contamination existed, at locations Chevron knew were still contaminated, and were downgradient from known contamination. You’d think that a book purportedly covering the largest environmental litigation in history would merit a real review of the evidence, much of which was provided by even the skewed soil and water samples taken by the company.

Other corrupt and illegal acts that were Chevron’s standard practice during the Ecuador trial are glanced over or omitted by Barrett. This includes the company’s successful cancellation of a judicial inspection of a major toxic site through collaboration with the Ecuadorian military to produce a phony security threat. Perhaps most audaciously, Barrett fails to adequately mention a sting operation where Chevron employees posed as remediation contractors in an attempt to entrap the presiding judge.

Barrett also overlooks all the arguments that render Chevron’s fraud claims ridiculous. If the trial was marred by fraud, why hasn’t Chevron filed an action to nullify the judgment under the fraud protection statute in Ecuadorian courts? Three layers of Ecuadorian courts – eight appellate judges – reviewed and upheld the $9 billion verdict, and threw out Chevron’s claims of fraud. But for Barrett, apparently U.S. courts are the only legitimate court system in the world.Barrett lets Judge Kaplan off the hook for his colonial overreach in judging a country’s legal system that he knows nothing about. Kaplan can’t read the native language, nor did he read the trial record. On top of that, Barrett seems unconcerned that Chevron’s star witness received some $300,000 in payments for his testimony, plus a new life for him and his family in the United States, thanks to a Chevron financed and supported asylum bid.Even Kaplan called it a corporate witness protection plan.

Not only does Barrett’s bias show throughout the book, his extracurricular activities lay bare his leanings. On July 20, 2014, Barrett joined Chevron and its legal team from Gibson, Dunn, and Crutcher for a Congressional subcommittee hearing organized by Chevron lobbyists on Latin American democracy. Alongside a Chevron lawyer, and a representative from the American Enterprise Institute, Barrett played the role of expert on Latin America, lamenting Chevron’s legal plight in the country jurisdiction of its choosing, without irony.

So what we’re left with is a book that’s a copy-paste job from Chevron’s legal briefs and reads as if the case, and the plight of the affected communities, is over. Peter Maass, author of the book “Crude World: The Violent Twilight of Oil,” reviewed Barrett’s book for Outside Magazine, and concluded: “There are two sides to the story of the biggest environmental lawsuit ever, but a new book tells only one of them.”

Parloff, Barrett, and Goldhaber are quick to claim that from the outset they had high hopes for the Ecuadorian villagers. They had hope that U.S. courts could be used to hold corporations accountable for human rights violations abroad. But given the overwhelming evidence against Chevron, we have to seriously question these claims. Two of the pillars of American business reporting, and a conservative legal magazine hoped that the Ecuadorian rainforest communities who procured the largest environmental judgment in history from the second largest U.S. oil company would prevail? That’s doubtful. The reporters have held on to that story merely to give the appearance of objectivity and to reinforce their framework claiming Chevron as the true victim. Immediately after publishing a number of articles, their “journalist” buddies began chiming in. Thus, the pro-Chevron feedback loop was set in motion.

For example, after Barrett’s book launched on Sept. 23, Joe Nocera, a columnist for The New York Times, wrote a piece about Barrett’s account. Nocera unquestioningly sides with Barrett and Chevron, while failing to mention that his wife’s law firm represented Chevron in a discovery matter directly related to the Ecuador litigation. Shouldn’t a journalist cite such an obvious conflict of interest?

Then cue Debra Saunders, the “token conservative” columnist for the San Francisco Chronicle. Saunders writes an article the next day about Nocera’s article about Barrett’s book. Feeling dizzy?

Saunders ends her piece quoting Nocera, with an alleged quote from Donziger, excerpted from the movie Crude, and edited and used by Chevron during the RICO trial. The quote is this: “Facts do not exist. Facts are created.” Sounds incriminating, right? Except Donziger goes on to say, “…and you talk to Texaco, because they create facts. Texaco creates facts. They create standards. … That’s what I am saying. They create fiction.”

This is how the Chevron media echo chamber continues to feed itself. A book repeats Chevron’s flawed arguments during the RICO trial almost verbatim, which produces articles and reviews of the book, which then produces yet more articles about articles about the book – all recycling and reinforcing Chevron’s false and misleading narrative. The great irony is that Nocera, Saunders, and Barrett and the others accuse Donziger of trying the case in the media, when in fact it’s Chevron and its minions who continue to prop up the company’s crumbling house of cards in the court of public opinion, because its legal case is meritless.

We all know that a good “David vs. Goliath” story sells. But what sells better is the ‘Hero’s fall from grace’ frame that Chevron’s defenders are pushing about Donziger. Except, the demonize Donziger narrative is not new. In fact, it’s been part of Chevron’s playbook long before the New York RICO trial began

Enter Sam Singer, from Chevron’s PR firm Singer and Associates. Singer is not merely Chevron Apologist-in-Chief; he’s a long time Bay Area PR hit man who prides himself on cleaning up the image of his corporate clients. He’s like the “Wolf” in *Pulp Fiction* – the guy you call to clean up your mess, hide the bodies, or whatever other unmentionables are needed. A recent piece in *SF Weekly*, “Trust Me: Who Are you Gonna Believe, San Singer or Your Own Eyes?” exposes Singer and his tactics:

When your workspace is engulfed in flames; when your mistress threatens to reveal your illegitimate family; when your restaurant serves up E. coli burgers; when your employees inadvertently kill a young child; when a wild beast rampages through your place of business – you better call Sam Singer. “When things go bump in the night,” assures Singer, “we are there.”

“The truth, after all, isn’t exactly Singer’s milieu. His mission is to push ‘the facts as our clients see them,'” writes Joe Eskenazi for the Weekly. That’s what Singer does for Chevron.

According to internal Chevron emails with Singer, the plan was to target Donziger from the get go. Singer’s strategy was to paint Ecuador “as the next major threat to America” like Iran or a “Cuban missile crisis in the making” and Donziger as “the most powerful man in Ecuador, pulling the strings of an emerging banana republic.”Indeed, another Chevron strategist in an internal memo to colleagues was more blunt, noting that the company’s [long-term] strategy is to demonize Donziger.”

But even Singer and Chevron’s strategy was wearing thin after Donziger and the Ecuadorians proved more resilient that Chevron thought possible. A recent article in Rolling Stone was a turning point, finally putting the spotlight on Chevron’s phony narrative and the vacuousness of its arguments for anyone willing to look past Chevron’s talking points. Despite this, Parloff, Barrett, and Goldhaber have been quick to take up the slack.

In the meantime, Chevron was unhappy with the unfavorable coverage it continued to receive in Richmond, California, home to the company’s largest and oft exploding refinery.Richmond’s mayor traveled to Ecuador to tour Chevron’s toxic legacy and saw firsthand the company’s impact on the rainforest and human health. Since then, she has been a vocal critic of Chevron’s disaster in Ecuador. Combined with coverage of a controversial $1 billion refinery expansion plan and Chevron dumping $1.6m into local elections, there was little positive traction for the company in the local press. What was Chevron to do? If you can’t influence the media, become the media!

Thus, the Richmond Standard was born. A Chevron-funded daily, the Richmond Standard is an Orwellian extension of the corporate media. An LA Times piece by Michael Hiltzik titled, “A Chevron PR website pretends to be an objective news source,” explains:

This is what the news business has come to in communities where economics have wiped out traditional local newspapers. Self-interested corporations have stepped into the vacuum. You’d be hard-pressed to find a case as flagrant as Richmond’s.

As the Financial Timesdescribes it:

The Richmond Standard is one of the more polished sites to emerge in the age of hyper-local digital news brands such as Patch and DNAinfo.com. That may be because it is run and funded by Chevron, the $240bn oil group which owns the Richmond refinery that in August 2012 caught fire, spewing plumes of black smoke over the city and sending more than 15,000 residents to hospital for medical help.

The only writer for the “paper” is an account executive for Singer and Associates, Mike Aldax.According to Aldax, “my function is to report the news you’re not seeing in Richmond.” Translation: pro-Chevron stories. Hiltzik reports:

Aldax says Chevron doesn’t review or edit his stories, but it doesn’t have to. It provides his paycheck, and even subconscious self-censorship can undermine news gathering – especially if one defines news as information its subject doesn’t want the public to know.

According to Singer, the Standard has at least found some support. “The rappers…They love us!”[huh?]

For Chevron and the Ecuador case, there’s no need to bypass corporate media when you have Parloff, Goldhaber, and Barrett. As the company’s prime cheerleaders, they give voice and credibility to Chevron’s recycled claims that were rejected by Ecuadorian courts.Meanwhile, the voices of indigenous and farming communities, who continue to suffer on the ground in Ecuador, are largely drowned out in the U.S.. These three pro-business American reporters give cover to Chevron’s board of directors whose oversight of the liability has been called out by its own shareholders. Parloff, Goldhaber, and Barrett help immunize CEO John Watsonwho, as Chief Architect for the Texaco acquisition, has let the Ecuador issue come to define the company, while the liability has ballooned into the billions. And they’ve wrongly lifted the spirits of Chevron’s stockholders who are led to believe that the issue is over.

But here’s the rub. Chevron never intended to file a RICO suit, nor did Watson ever think it would get this far.The company’s strategy has always been to outlast and out-resource the Ecuadorian communities and their legal team. It was Judge Kaplan who, presented with edited outtakes from the movie Crude that Chevron now admits were not properly translated or did not include the full transcript, asked, “does RICO play here at all?” A U.S. federal judge suggested that Chevron ought to file RICO charges, and the company quickly obliged. Kaplannavigated Chevron and its legal team through the trial, and issued a ridiculous verdict ripe to be overruled.

Which is why, during the four years in the run up to and during the trial, Chevron has sought to eviscerate the plaintiffs, their legal counsel, their funders, NGOs, or anyone who has ever dared to support the communities. The company hoped to outlast Donziger and the plaintiffs in a resource and PR battle, because they know exactly how hard it is to win the case on the merits. Ironically, given the tremendous amount of resources and time Chevron has invested in its scorched earth strategy, the communities and their counsel are not only still alive, they are in a remarkably good position.

The seven-week bench trial that Kaplan presided over – and that Parloff, Goldhaber, and Barrett sat through – may have generated back slaps and high-fives from San Ramon to Midland, Texas. But it was never built to last. Which is why, at least according to the rumor mill, Chevron is looking for an exit strategy. The company likely hopes the Ecuadorian government will play a role in its hoped-for rescue.

With a panel from the Second Circuit Court of Appeals looming over the company, Watson has reason to be worried. The last time the Second Circuit had a crack at Judge Kaplan, it vacated his preliminary injunction in the case almost immediately. It was also an embarrassing public depantsing of Gibson Dunn lawyer Randy Mastro, who was literally laughed out of court. Don’t expect to see Randy making the oral arguments this time.

But before the Second Circuit hearing, another critical hearing is slated for December. In Canada, the country’s Supreme Court will hear arguments on whether the Ecuadorian communities can indeed go after Chevron’s massive assets as a way of enforcing their judgment. These are major, make-or-break hearings for Chevron. But you wouldn’t know that by reading the work of Parloff, Barrett, or Goldhaber. These three gringos who have been guzzling Chevron’s Kool-Aid for the last four years may very soon wake with a hangover of a lifetime.

Chevron Cofan Corporate Accountability Dirty Energy Ecuador Oil and Gas

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EMAIL 4/11/22

...Even though my release date is nearing, I cannot rest easy. The reality is that my family and I are still living on pins and needles. Recently, I received a call in the middle of the night from the halfway house at 2:15 a.m. When that phone rings, I shudder: I never know if the voice will say “pack your bags and get here immediately, per directive of the Bureau of Prisons.” That’s what happened in early February and I ended up locked up for 5 days in the halfway house in the Bronx. If I had not awakened the other night, the Bureau of Prisons could have put me on “escape” status and had federal marshals handcuff me in my home and take me back to prison.

While the peril from these attacks will not completely recede, we are optimistic as we get closer to April 25. Here are the key takeaways:

First, we must have the legal firepower to neutralize the continued harassment by Chevron after my sentence ends. It is even possible Judge Kaplan will try to charge me with the same “contempt” over my ongoing protection of the confidential information of my clients on my computer cell phone. I am going to need even more legal protection in the coming months to deal with these attacks – independent of the legal team needed to help the Indigenous peoples of Ecuador force Chevron to comply with the $9.5 billion pollution judgment (affirmed by six appellate courts) so they can finally clean up their ancestral lands.

Second, several high-profile artists are planning a major “homecoming” to Ecuador’s Amazon this summer to celebrate my release. The objective will be to put the focus back where it should be: on the Indigenous peoples being poisoned by Chevron’s despicable acts of pollution, rather than on me and the lawyers the company is attacking. This trip will be a major pivot point but it will take significant resources. (For those who might want to participate, please let me know). 

Third, we are continuing our multi-pronged exoneration strategy toerase my contempt “conviction” by Judge Preska.This includes an international campaign to convince President Biden to pardon me, now backed by 120 human rights and environmental groups (including Amnesty International); our legal work to reverse my conviction in U.S. appellate courts; and our campaign to implement the favorable decision of the United Nations that found my detention to be arbitrary and in violation of international law.

You know what’s really crazy? Not only am I the only lawyer in U.S. history detained for a misdemeanor contempt charge, I am also the only person ever convicted of a misdemeanor forced to serve his entire sentence before the appellate court rules on whether the conviction was legal. That’s one reason why the U.N. concluded my case reflected a “staggering” and “appalling” level of judicial bias by U.S. judges Kaplan and Preska.

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https://www.alternet.org/2021/10/capital/

Judge Loretta Preska, an advisor to the conservative Federalist Society, to which Chevron is a major donor, sentenced human rights attorney and Chevron nemesis Steven Donziger to six months in prison Friday for misdemeanor contempt of court after he had already spent 787 days under house arrest in New York.

This article originally appeared on ScheerPost.]

Preska's caustic outbursts — she said at the sentencing, "It seems that only the proverbial two-by-four between the eyes will instill in him any respect for the law"— capped a judicial farce worthy of the antics of Vasiliy Vasilievich, the presiding judge at the major show trials of the Great Purges in the Soviet Union, and the Nazi judge Roland Freisler who once shouted at a defendant,"You really are a lousy piece of trash!"

Donziger, a graduate of Harvard Law School, has been fighting against polluting American oil companies for nearly three decades on behalf of indigenous communities and peasant farmers in Ecuador. His only "crime" was winning a $9.5 billion judgment in 2011 against Chevron for thousands of plaintiffs. The oil giant had bought Texaco oil company holdings in Ecuador, inheriting a lawsuit alleging it deliberately discharged 16 billion gallons of toxic waste from its oil sites into rivers, groundwater, and farmland. Since the verdict, Chevron has come after him, weaponizing litigation to destroy him economically, professionally, and personally.

The sentencing came a day after Donziger petitioned the court to consider an opinion by the United Nations human rights council that found his house arrest a violation of international human rights law. The U.N human rights council said his house arrest counted as detention under international law and it was therefore illegal for Judge Preska to demand an additional six months in jail. Amnesty International also called for Donziger's immediate release.

Donziger and his lawyers have two weeks to appeal the judge's order that Donziger be sent immediately to jail. Preska denied Donziger bail claiming he is a flight risk. If the Federal Court of Appeals turns down Donziger's appeal he will go to jail for six months. The irony, not lost on Donziger and his lawyers, is that the higher court may overturn Preska's ruling against him, but by the time that decision is made he will potentially have already spent six months in jail.

"What Judge Preska is trying to do is force me to serve the entirety of my sentence before the appellate court can rule," Donziger told me by phone on Monday. "If the appellate court rules in my favor, I will still have served my sentence, although I am innocent in the eyes of the law."

Donziger, his lawyers have pointed out, is the first person under U.S. law charged with a "B" misdemeanor to be placed on home confinement, prior to trial, with an ankle monitor. He is the first person charged with any misdemeanor to be held under home confinement for over two years. He is the first attorney ever to be charged with criminal contempt over a discovery dispute in a civil case where the attorney went into voluntary contempt to pursue an appeal. He is the first person to be prosecuted under Rule 42 (criminal contempt) by a private prosecutor with financial ties to the entity and industry that was a litigantin the underlying civil dispute that gave rise to the orders. He is the first person tried by a private prosecutor who had ex parte communications with the charging judge while that judge remained (and remains) unrecused on the criminal case.

"No lawyer in New York for my level of offense ever has served more than 90 days and that was in home confinement," Donziger told the court. "I have now been in home confinement eight times that period of time. I have been disbarred without a hearing where I have been unable to present factual evidence; thus, I am unable to earn an income in my profession. I have no passport. I can't travel; can't do human rights work the normal way which I believe I am reasonably good at; can't see my clients in Ecuador; can't visit the affected communities to hear the latest news of cancer deaths or struggles to maintain life in face of constant exposure to oil pollution.

In addition, and this is little known, Judge [Lewis A.] Kaplan has imposed millions and millions of dollars of fines and courts costs on me. [Kaplan is the judge for Chevron's lawsuit against Donziger; Preska is his handpicked judge for the contempt charges.] He has ordered me to pay millions to Chevron to cover their legal fees in attacking me, and then he let Chevron go into my bank accounts and take all my life's savings because I did not have the funds to cover these costs. Chevron still has a pending motion to order me to pay them an additional $32 [million] in legal fees. That's where things stand today. I ask you humbly: might that be enough punishment already for a Class B misdemeanor?"

Judge Preska was unmoved.

"Mr. Donziger has spent the last seven years thumbing his nose at the U.S. judicial system," Preska said at his sentencing hearing. "Now it's time to pay the piper."

The six-month sentence was the maximum the judge was allowed to impose;she ruled that his house arrest cannot be counted as part of his detention. From start to finish, this has been a burlesque. It is emblematic of a court system that has been turned over to lackies of corporate power, who use the veneer of jurisprudence, decorum, and civility to make a mockery of the rule of law.

When the law is neutered, judges become the enforcers of injustice. These corporate judges, who epitomize what Hannah Arendt called the banality of evil, now routinely make war on workers, civil liberties, unions, and environmental regulations.

Preska sent Jeremy Hammond to prison for a decade for hacking into the computers of a private security firmthat works on behalf of the government, including the Department of Homeland Security, and corporations such as Dow Chemical. In 2011, Hammond released to the website WikiLeaks and Rolling Stone and other publications some three million emails from the Texas-based company Strategic Forecasting Inc., or Stratfor. The sentence was one of the longest in U.S. history for hacking and the maximum Preska could impose under a plea agreement in the case. I sat through the. I watched Preska spew her bile and contempt at Hammond from the bench with the same vitriol she used to attack Donziger.

Preska is also infamous for her long judicial crusade to force New York public schools to provide tax-subsidized free space for evangelical churches based on blatantly illogical readings of the Constitution.

The persecution of Donziger fits a pattern familiar to millions of poor Americans who are coerced into accepting plea deals, many for crimes they did not commit, and sent to prison for decades. It fits the pattern of the judicial lynching and prolonged psychological torture of Julian Assange and Chelsea Manning. It fits the pattern of those denied habeas corpus and due process at Guantánamo Bay or in CIA black sites. It fits the pattern of those charged under terrorism laws, many held at the federal Metropolitan Correctional Center (MCC) in Lower Manhattan, who cannot see the evidence used to indict them. It fits the pattern of the widespread use of Special Administrative Measures, known as SAMs, imposed to prevent or severely restrict communication with other prisoners, attorneys, family, the media, and people outside the jail. It fits the pattern of the extreme sensory deprivation and prolonged isolation used on those in our black sites and prisons, a form of psychological torture,the refinement of torture as science. By the time a "terrorist" is dragged into our secretive courts the bewildered suspect no longer has the mental and psychological capability to defend themselves. If they can do this legally to the demonized they can, and one day will, do it to the rest of us. The Donziger case is an ominous warning that the American legal system is broken.

Ralph Nader, who graduated from Harvard Law School, has long decried the capture of the courts and law schools by corporate power, calling the nation's attorneys and judges "lucrative cogs in the corporate wheel." He notes that law school curriculums are "built around corporate law, and corporate power, and corporate perpetration, and corporate defense."

Victor Klemperer, who was dismissed from his post as a professor of Romance languages at the University of Dresden in 1935 because of his Jewish ancestry, astutely noted how at first theNazis "changed the values, the frequency of words, [and] made them into common property, words that had previously been used by individuals or tiny troupes. They confiscated words for the party, saturated words and phrases and sentence forms with their poison. They made language serve their terrible system. They conquered words and made them into their strongest advertising tools [Werebemittle], at once the most public and most secret." And, Klemperer noted, as the redefinition of old concepts took place the public was oblivious.

This redefinition of words and concepts has, as Klemperer witnessed during the rise of fascism, allowed the courts to twist the law into an instrument of injustice, revoking our rights by judicial fiat. It has seen the courts permit unlimited dark money into political campaigns under Citizens United, defending our money-saturated elections as the right to petition the government and a form of free speech. The courts have revoked our right to privacy and legalized wholesale government surveillance in the name of national security. The courts grant corporations the rights of individuals, while rarely holding the individuals who run the corporations accountable for corporate crimes.

Very few of the legal rulings that benefit corporate power have popular support. The corporate disemboweling of the country, therefore, is increasingly given cover by Christian fascists, who energize their base around abortion, prayer in schools, guns and breaking down the separation of church and state. These issues are rarely addressed in cases before federal courts. But they distract the base from the slew of pro-corporate rulings that dominate most court dockets.

Corporations such as Tyson Foods, Purdue, Walmart, and Sam's Warehouse have poured millions into institutions that indoctrinate these Christian fascists, including Liberty University and Patrick Henry Law School. They fund the Judicial Crisis Network and the U.S. Chamber of Commerce, which campaigned for Amy Coney Barrett's appointment to the Supreme Court. Barrett opposes abortion and belongs to People of Praise, a far-right Catholic cult that practices "speaking in tongues." She and the other far-right ideologues are hostile to LGBTQ rights. But this is not why she is so beloved by corporations, who are not interested in abortion, LGBTQ equality or gun rights.

Barrett and the Christian fascists embrace an ideology that believes that God will take care of the righteous. Those who are poor, those who are sick, those who go to prison, those who are unemployed, those who cannot succeed in society do so because they have failed to please God. In this worldview there is no need for unions, universal health care, a social safety net or prison reform. Barrett has ruled consistently in favor of corporations to cheat gig workers out of overtime, green-light fossil fuel extraction and pollution and strip consumers of protection from corporate fraud. The watchdog group Accountable.US found that as a circuit court judge,Barrett "faced at least 55 cases in which citizens took on corporate entities in front of her court and 76% of the time she sided with the corporations."

The Christian fascists, allied with organizations such as the Federalist Society, under the Trump administration gave lifetime appointments to nearly 200 judges, roughly 23 percent of all federal judgeships. That included 53 to the nation's appellate courts, the court immediately under the Supreme Court. The American Bar Association, the country's largest nonpartisan coalition of lawyers, has rated many of these appointments as unqualified. There are currently six Federalist Society Supreme Court justices, including Amy Coney Barrett, Neil Gorsuch, and Brett Kavanaugh, who Nader calls "a corporation masquerading as a human being." Two Federalist Society Supreme Court justices, Clarence Thomas and the late Antonin Scalia, who was an original faculty advisor to the organization founded by conservative law students in 1982, were supported in the nomination process by Joe Biden.

The stacking of the courts with corporate puppets, however, began long before Trump. It was carried out by both Republican and Democratic administrations. Preska was appointed by Republican President G.W. Bush. However, the judge who preceded Preska in the Donziger case, Judge Lewis A. Kaplan, a former lawyer for the tobacco industry who had undisclosed investments in funds with Chevron holdings, according to his public financial disclosure statement, was appointed by Democratic President Clinton.

The targeting of the courts was one of the key goals of Lewis Powell, a corporate lawyer later elevated to the Supreme Court by President Nixon. In Powell's 1971 memo to the Chamber of Commerce, a blueprint for the slow-motion corporate coup that has taken place,he called on business interests to pack the judiciary with corporate-friendly judges.

The courts in all tyrannies are dominated by mediocrities and buffoons. They make up for their intellectual and moral vacuity with a zealous subservience to power. They turn courtroom trials into opera buffa, at least until the victim is shackled and pushed out the door to a prison cell. They fulminate in caustic tirades at the condemned, whose sentence is never in doubt and whose guilt is never in question.

"It started when Texaco went into Ecuador in the Amazon in the 1960s and cut a sweetheart deal with the military government then ruling Ecuador," Donziger told me for a column I wrote about his case a year ago. "Over the next 25 years, Texaco was the exclusive operator of a very large area of the Amazon that had several oil fields within this area, 1500 square miles. They drilled hundreds of wells. They created thousands of open-air, unlined toxic waste pits where they dumped the heavy metals and toxins that came up from the ground when they drilled. They ran pipes from the pits into rivers and streams that local people relied on for their drinking water, their fishing, and their sustenance. They poisoned this pristine ecosystem, in which lived five indigenous peoples, as well as a lot of other nonindigenous rural communities. There was a mass industrial poisoning."

"The verdict came down, about $18 billion in favor of the affected communities, which is what it would take at a minimum to clean up the actual damage and compensate the people for some of their injuries," Donziger told me. "That eventually got reduced on appeal in Ecuador to $9.5 billion, but it was affirmed by three appellate courts, including the highest court of Ecuador. It was affirmed by the Canadian Supreme Court, where the Ecuadorians went to enforce their judgment in a unanimous opinion in 2015."

Chevron promptly sold its assets and left Ecuador. It refused to pay the fees to clean up its environmental damage. It invested an estimated $2 million to destroy Danziger. Chevron sued him, using a civil courts portion of the federal law famous for breaking the New York Mafia in the 1970s, the Racketeer Influenced and Corrupt Organizations, or RICO Act. Chevron, which has more than $260 billion in assets, hired an estimated 2,000 lawyers from 60 law firms to carry out its campaign, according to court documents. But the oil giant, which did not want a jury to hear the case, dropped its demand for financial damages, which would have allowed Donziger to request a jury trial. This allowed Judge Kaplan to decide the RICO case against Donziger alone. He found credible a witness named Alberto Guerra, an Ecuadorian judge, relocated to the US by Chevron at a cost of some $2 million, who claimed the verdict in Ecuador was the product of a bribe. Kaplan used Guerra's testimony as primary evidence for the racketeering charge, although Guerra, a former judge, later admitted to an international tribunal that he had falsified his testimony.

John Keker of San Francisco, one of Donziger's lawyers on that case, said he was up against 160 lawyers for Chevron and during the trial he felt "like a goat tethered to a stake." He called the court proceedings under Kaplan "a Dickensian farce" and a "show trial."

In the end, Kaplan ruled that the judgment in the Ecuadorean court against Chevron was the result of fraud. He also ordered Donziger to turn over decades of all client communication to Chevron, in effect eradicating attorney-client privilege, a backbone of the Anglo-American legal system with roots dating to ancient Rome. Donziger appealed what was, according to legal experts following the case, an unprecedented and illegal order. While Donziger's appeal was pending, Kaplan charged him with misdemeanor criminal contempt for this principled stance — carrying a maximum sentence of six months — as well as his refusal to turn over his passport, his personal electronics and to refrain from seeking the collection of the original award against Chevron. When the U.S. attorney's office declined for five years to prosecute his criminal contempt charges against the environmental lawyer, Kaplan, using an exceedingly rare judicial maneuver, appointed the private law firm of Seward & Kissel, to act in the name of the government to prosecute Donziger. Neither the judge nor the law firm disclosed that Chevron has been a client of Seward & Kissel.

Kaplan also violated the established random case assignment protocol to personally assign Preska, who had served on an advisory board of the Federalist Society, a group to which Chevron has been a lavish donor, to hear the case. Kaplan had Preska demand Donziger post an $800,000 bond on the misdemeanor charge. Preska placed him under house arrest and confiscated his passport,which he has used to meet with attorneys around the world attempting to enforce the judgment against Chevron.Kaplan managed to have Donziger disbarred. He allowed Chevron to freeze Donziger's bank accounts, slapped Donziger with millions in fines without allowing him a jury, forced him to wear an ankle monitor 24 hours a day and effectively shut down his ability to earn a living.Kaplan allowed Chevron to impose a lien on Donziger's apartment in Manhattan where he lives with his wife and teenage son.

None of this would surprise those targeted by the tyrannies of the past. What would be surprising, perhaps, to many Americans is how advanced our own corporate tyranny has become. Donziger never stood a chance. Neither does Julian Assange. These judges are not, in the end, focused on Donziger or Assange, but on us. The show trials they preside over are meant to be transparently biased. They are designed to send a message. All who defy corporate power and the national security state will be lynched. There will be no reprieve because there is no justice.

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prosec by chevron, almost 2 yrs house arrest, disbarred, no one ever jailled for misdemeanor; he cd still do 6 mos in actual jail on top

rudy pal mastro, she was assigned case by pal louis hon vs law random assign

read paper during trial, all objections but one denied; only one question, did you disobey kaplan order?

aoc etc ltr but no action by AG garland

https://kpfa.org/episode/a-rude-awakening-june-4-2021/

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https://www.thenation.com/article/activism/steven-donziger-chevron/

no lnx

More than a quarter-century ago, Steven Donziger, a young American human rights lawyer, joined the legal effort to force Texaco to clean up the Ecuadoran headwaters of the Amazon rain forest. Between 1972 and 1992, the company dumped toxic waste and spilled billions of gallons of oil-exposed water across 1,700 square miles, an area larger than Rhode Island. In response, a coalition of rural Ecuadorans in the Lago Agrio region sued the US oil giant, and Donziger signed on to help and soon became the lead attorney on the case.

In 2013, after a legal campaign that stretched across two continents, the 30,000 indigenous people and small farmers whom Donziger represented in a class-action lawsuit won a $9.5 billion judgment in Ecuadoran courts against Chevron, which acquired Texaco in 2001. It was one of the largest financial judgments ever against an oil company. It looked like a historic warning to polluters across the Global South. Paul Paz y Miño, the associate director of the environmental group Amazon Watch, described it as “the most important corporate accountability case in history.”

Fast-forward to today, and Don­ziger is under house arrest in New York City, forced to wear an ankle monitor. The lawyer, now 59, is fighting contempt charges.Meanwhile, his clients in Ecuador have received nothing from Chevron. Without that funding, they have no way to cleanse the poisoned soil or treat what they say is an elevated number of cancer cases.

The mainstream press has largely ignored the legal attacks against Donziger, but Chevron’s counter­offensive could endanger human rights and environmental work around the world. Donziger’s fate, Paz y Miño said, will set a precedent: “Whether it’s Chevron or BP or Shell or any other oil company, if you cannot hold them to account and the lawyer advocating for that case is personally attacked, who else is going to fight those kinds of cases?”

Chevron’s legal onslaught succeeded largely because of a single federal judge in New York named Lewis A. Kap­lan. In 2014, Kaplan found Donziger and his Ecuadoran allies guilty of bribery and fraud, which makes it extremely difficult for the plaintiffs to collect their damages in the United States. Then Kaplan asked federal prosecutors in the Southern District of New York to bring criminal contempt charges against Donziger for refusing to turn over his electronic devices, which contain communications with his clients.When the prosecutors declined, Kaplan appointed private attorneys to prosecute Donziger—a nearly unprecedented step by a federal judge.

Judge Lewis Kaplan took the nearly unprecedented step of appointing private attorneys to prosecute Donziger. (Courtesy of Richard Baker / University of Rochester)

Kaplan’s hostility toward Donziger has been on ample display in his 21st-floor wood-paneled courtroom in downtown New York for nearly a decade. At times, he has said the pollution case in Ecuador was “not a bona fide litigation” and dismissed the Lago Agrio residents as “so-called plaintiffs.”

Martin Garbus, the legendary human rights lawyer who is part of Donziger’s legal team, is 86 years old and has appeared at hundreds of trials, including in the Deep South during the segregation era. He told me that Kaplan’s treatment of Donziger is the worst he has ever witnessed. “In the courtroom, Kaplan displayed a rage, a fury, that he channeled against Steve,” Garbus said. “He tried to humiliate him. You wouldn’t have to be an expert on the law to recognize it. It was brutal. I’ve never seen a guy eviscerated the way Kaplan tried to eviscerate Steve.”

For his part, Donziger said he hopes the Ecuadorans and their lawyers will hold Chevron accountable. He is a tall man—6 feet, 4 inches—and has been pacing restlessly around his Upper West Side apartment, reading law briefs or talking with his contacts in Ecuador by phone. These days, the coronavirus has driven almost everyone into their homes, but Donziger has already spent months “detained in a small apartment not because we did anything wrong,” he said, “but because we were successful and did a lot of things right. Facing the loss of one’s liberty not because one committed a crime but because of something dark and unaccountable in the system is terrifying. It calls into question most everything I believe about our country and my role in it.”

In an open letter to his supporters last August, Don­ziger wrote, “I never knew when I started working on this case in 1993 that I would face jail for standing up for the rights of my clients, who have been victimized by what is probably the world’s worst oil pollution…. Quite simply, Judge Kaplan and Chevron are working in lockstep to try and destroy me and my clients.”

Alberto Guerra, a former Ecuadoran judge who admitted to lying about his interactions with Donziger, became the target of outrage after he testified in support of Chevron.

The saga began in the 1980s, when Ecuadorans in the rain forest started to protest Texaco’s contamination. The company left Ecuador in 1992, after having dumped crude oil, drilling muds, and an oily, watery mixture known as formation water into unlined waste pits—a procedure that has been outlawed in Texas since 1969. Texaco also released billions of gallons of oil-laced water into the rain forest’s streams and lakes, even though the standard procedure in the United States has long been to inject the potentially toxic compounds safely deep underground.

Five peer-reviewed scientific studies have shown an increased incidence of cancer and other health risks in the area. (Chevron funded its own peer-reviewed study, which claimed to find no such cancer risk.)

About 20 grassroots organizations formed the Amazon Defense Coalition in the mid-1990s, and Donziger, a recent graduate of Harvard Law School, started representing the group in 1993.The Ecuadorans originally sued Texaco in the United States, but after years of delay, a federal judge in New York sent the case to Ecuador in 2001. More than a decade later, Chevron lost. Three levels of Ecuadoran courts up to the Supreme Court ratified the verdict and awarded the plaintiffs $9.5 billion. (Though even if Chevron honored the decision, none of the rain forest residents would receive a check. Instead, the Amazon Defense Coalition would use the money to scour the soil of toxins and build treatment centers for cancer patients.)

RELATED ARTICLE

The Nation

ECUADOR’S BATTLE FOR ENVIRONMENTAL JUSTICE AGAINST CHEVRON

James North

Chevron defended itself at every stage of the proceedings in Ecuador, and for years it never challenged the legitimacy of the process. But in 2010 it changed strategies. Chevron launched a countersuit in a New York federal court, alleging that Donziger and his allies had committed bribery and fraud in Ecuador to win the case. The company invoked the Racketeer Influenced and Corrupt Organizations Act, originally designed to prosecute the Mafia, and in 2011, Kaplan presided over a new trial. Donziger and the Ecuadoran codefendants expected that such serious charges would be tried before a jury, but at the last minute, Chevron dropped its demand for monetary damages.Under RICO law, this meant Donziger and the others lost their right to appear before a jury and Kaplan alone would decide the facts of the case. Charles Nesson, a Harvard law professor, wrote recently in the Harvard Law Record that “Chevron amended its demands to cheat Donziger out of a jury.”

From the beginning of the RICO trial, Kaplan made his pro-business outlook clear. He lauded Chevron as “a company of considerable importance to our economy that employs thousands all over the world, that supplies a group of commodities—gasoline, heating oil, other fuels, and lubricants—on which every one of us depends every single day. I don’t think there is anybody in this courtroom who wants to pull his car into a gas station to fill up and finds that there isn’t any gas there.”

During the case, Chevron claimed that Donziger and his clients had bribed the original trial judge in Ecuador. Chevron’s star witness was Alberto Guerra, a former judge who lost his position on the Ecuadoran bench because of corruption accusations and later, in testimony before an international trade tribunal, admitted to lying about his interactions with Donziger. The oil giant acknowledged paying Guerra and moving him and his family to a secret location in the United States. In all, Donziger estimated that Chevron has spent $2 million on the ex-judge.

Catastrophe: Cofan women stand near a pool of oil. Texaco spilled billions of gallons of contaminated water in Ecuador’s Amazon region. (Dolores Ochoa / AP)

Chevron’s lawyers rehearsed Guerra’s testimony with him 53 times and then put him on the stand in front of Kaplan. In his testimony, the disgraced ex-judge asserted that Donziger and an Ecuadoran lawyer, Pablo Fajardo, had offered him a $500,000 bribe and that Donziger and Fajardo had ghostwritten the final judgment against Chevron. Nicolás Zambrano, the judge who had rendered the decision in Ecuador, denied Guerra’s testimony, but Kaplan accepted Guerra’s account, dismissed Zambrano, and found Donziger and his Ecuadoran colleagues guilty in 2014.

Chevron’s legal offensive is an example of a Strategic Lawsuit Against Public Participation, or SLAPP, suit. Over the past few decades, corporations have brought an increasing number of SLAPP suits against environmental and human rights groups. The idea is to spend so much money that your underfunded opponents are forced to give up.The oil giant presumably also has a related aim: to prevent the plaintiffs from ever collecting their cleanup money. Kaplan’s verdict in the RICO case means Chevron can refuse to pay them in the United States. Chevron has long since sold its remaining holdings in Ecuador, so now Donziger and the Amazon Defense Front have to chase the corporation to other countries where it still does business. Chevron’s lawyers are already trying to use the New York RICO judgment to discredit legal efforts against the company in Canada and elsewhere.

Kaplan’s persecution of Donziger did not stop after the RICO verdict. Donziger faces criminal contempt charges because he has so far refused to turn over his personal computer and cell phone to Chevron, as Kaplan ordered him to do last March. Donziger said in a press release that he is defending his clients, because his electronic communications would give Chevron’s lawyers “backdoor access to spy on everything we are planning, thinking, and doing.” He said he wants to wait until the US Court of Appeals hears his defense, after which he will promptly hand over his computer and phone if the higher court confirms Kaplan’s directive.

Sean Comey, Chevron’s senior adviser on corporate issues, litigation, and financial communications, declined to comment for this article. As a result, I was unable to ask him a series of questions, including: Is your company still paying Guerra for his cooperation? How much is it continuing to spend on the legal case? Why do attorneys representing Chevron appear at every hearing against Donziger, even ones that don’t involve the oil company? And what is Chevron’s role, if any, in the multiple legal attacks against Donziger?

Show of hands: Protesters in New York City, some with symbolically oil-stained hands, demonstrate against Chevron in 2013. (Spencer Platt / Getty Images)

Meanwhile, residents in the Amazon rain forest live and work on poisoned land. Donziger cautions that their plight must remain the center of the case. He works closely with Luis Yanza, the elected leader of the Amazon Defense Coalition and a lifelong defender of the environment; in 2008, Yanza won the prestigious Goldman Environmental Prize, an award for frontline activists. Donziger and Yanza have talked and e-mailed regularly for more than 25 years, and Donziger, who is fluent in Spanish, estimated that he has visited Ecuador 250 times to consult with his clients.

Yanza told me that cancer continues to afflict people in the rain forest. “I visited several of our communities just last weekend, and each one had two or three cases of cancer, including a girl,” he said. And there is no adequate treatment facility in the Lago Agrio area, he added. “The closest cancer treatment center is in Quito, which is seven to 12 hours by bus, depending on where you live.”

Luis Yanza, the elected leader of the Amazon Defense Coalition, speaks at a protest against Chevron in 2008. (AP Photo / Paul Sakuma)

He is indignant about the attacks on Donziger. “Steven is totally the opposite of how Chevron portrays him,” Yanza said. “He’s dedicated his life—a great part of his life—to defending people in our poor communities.” Yanza also dismissed the insinuations of critics that Donziger is manipulating the unsophisticated rain forest inhabitants. “This is the mentality of imperialism, saying that we don’t have the capacity to think and to act, to make decisions about our own lives. Steven and others in the United States do provide technical and legal help, but the fundamental decisions are made by us here.”

Donziger’s critics say that he is mainly after his percentage of the judgment, that he’s an ambulance-chasing attorney who found his way to the rain forest. But if that were true, wouldn’t Donziger have given up by now? Surely he would have cut his losses, dusted off his Harvard Law diploma, and found another potential money-making scheme. Instead, he has remained under house arrest for nearly eight months.

Donziger is also fighting to get his law license reinstated. (It was suspended in 2018 without a hearing, based on Kaplan’s findings in the contempt case.) In September and October, he appeared several times at a New York Bar Association hearing in lower Manhattan, before a polite referee named John Horan. The cramped, low-ceilinged hearing room was filled with human rights lawyers and environmentalists who support Donziger—as well as a few conservatively dressed attorneys representing Chevron. A parade of witnesses testified to Donziger’s honesty and integrity, including Rex Weyler, a founder of Greenpeace; Roger Waters of the rock band Pink Floyd; and Simon Taylor, one of the directors of Global Witness, the influential inter­national anti-corruption organization. On February 24, Horan found in Donziger’s favor and recommended that his law license be restored. Horan, a former prosecutor, sharply criticized Chevron’s vendetta, writing, “The extent of [Donziger’s] pursuit by Chevron is so extravagant, and at this point so unnecessary and punitive, [that] while not a factor in my recommendation, [it] is nonetheless background to it.” Horan’s decision must now be reviewed by a New York state court.

Steven Donziger addresses a press conference in Ecuador in 2014. Today he’s under house arrest. (Rodrigo Buendia / AFP via Getty Images)

On November 25, Donziger appeared before Senior US District Judge Loretta Preska, who will preside over his criminal contempt trial, to ask that his confinement be ended and replaced by an $800,000 bail bond, guaranteed by a number of his supporters. His attorney, Andrew Frisch, reminded the court that Donziger has a family and is not likely to abandon it to flee the United States. What’s more, Frisch pointed out, doing so would mean abandoning his clients in Ecuador. “For 25 years,” he noted, “Mr. Donziger has had his skin, his heart, and his soul in this cause, which is bigger than him.”

In the end, Preska turned down the request. “Mr. Donziger has ties to Ecuador, we know, indeed, to high-ranking government officials,” she said. “We know he has traveled to Ecuador on numerous, numerous occasions…. I find that he remains a flight risk, and accordingly, the request to eliminate monitoring and home confinement is denied.”

Donziger’s trial isn’t scheduled to begin until June 15. He is again challenging his home detention, but he could remain confined to his apartment until then. If this effort fails, he will have spent more than 300 days under house arrest.

Donziger described what it’s like to live under these circumstances. “Sleep is difficult because my ankle bracelet actually blinks and talks,” he said. “A voice reminds me to recharge the battery, which allows the state to monitor my every movement.” The bracelet is “like a giant black claw that clings to your lower leg. It’s designed to be a constant reminder of your banishment, to disorient you psychologically. Of course,” he added, “Chevron and Judge Kaplan want me to be consumed with my survival—rather than helping the indigenous people of Ecuador collect their judgment.”

James North has reported from Africa, Latin America, and Asia for four decades. He lives in New York City.

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https://www.greenpeace.org/international/story/16448/chevrons-slapp-suit-against-ecuadorians-corporate-intimidation/

no lnx many

Chevron’s SLAPP suit against Ecuadorians: corporate intimidation

by Rex Weyler

CO-FOUNDER

11 May 2018 |

These days, when powerful corporations get caught breaking the law, polluting the Earth, violating human rights, or all of those crimes simultaneously, they don’t pay the fine and make amends, like normal citizens. They attack.

Corporate lawyers spend millions to assault victims with SLAPPs (Strategic Lawsuit Against Public Participation). The most recent SLAPP strategy in the US, popularized by attack-dog New York law firm Gibson Dunn, employs US “racketeering” (RICO) laws against environmental groups, victims of pollution, and their lawyers.

The purpose of a SLAPP lawsuit is not necessarily to win in court, but rather to intimidate, harass, demonize, and bankrupt the weaker opponent. “The powerful use their abundance of resources to enact revenge,” explains the American Civil Liberties Union. Many jurisdictions now ban SLAPP suits, but corporations still shop around for lax jurisdictions and sympathetic judges.

In 2013, for example, when Greenpeace Canada exposed Resolute Forest Products’ destructive logging in Québec, Resolute filed a retaliatory $7-million lawsuit against Greenpeace Canada and two staff members in Ontario, which did not yet have anti-SLAPP laws. Later, Resolute used US courts to attack Greenpeace USA and Greenpeace International under the Racketeer Influenced and Corrupt Organizations (RICO) Act, created in 1970 to prosecute organized crime syndicates. “This lawsuit,” said Greenpeace US director Annie Leonard, “is an attempt to silence, vilify, and criminalize activism.” As with most of these intimidation lawsuits, the RICO case in the US was thrown out of court, but Resolute promptly filed an amended suit.

In perhaps the most vindictive SLAPP in history, Chevron — one of the world’s largest corporations, with over $260-billion in assets — found a sympathetic New York judge to accept a RICO lawsuit against the victims of its vast oil pollution in Ecuador’s Amazon basin.

Legal thuggery

Chevron’s Amazon troubles began in 2000 when it purchased Texaco, inheriting liability for the company’s oil field pollution in Ecuador, known as the Amazon Chernobyl. Texaco/Chevron had dumped some 16 billion gallons of toxic wastewater into rivers and abandoned over 900 carcinogenic waste pits. The Indigenous rainforest inhabitants claim they were left with destroyed land, polluted water, and an epidemic of cancer and birth defects.

Abandoned toxic oil dump, Ecuador. Courtesy of Amazon Watch Abandoned toxic oil dump, Ecuador. Courtesy of Amazon Watch]

In 1993, the victims sued for damages in the US. Chevron fought for nine years to shift the case to Ecuador, where they may have expected to influence the courts. Chevron fully accepted jurisdiction in Ecuador, where the case began in 2003. Six years later, in light of overwhelming scientific evidence, Chevron realized that they would likely lose. In 2009 the oil company hired the notorious “rescue squad” law firm of Gibson Dunn, found a corporate-friendly Judge, Lewis A. Kaplan in New York, and began a series of SLAPP attacks on the victims, on their lawyers, and on the Ecuadorian judicial system. Over the next five years, Kaplan allowed virtually any Chevron motion, denied defendant motions, mocked the victims and their lawyers, and allowed a RICO racketeering case against two Ecuadoreans — Secoya Indigenous leader Javier Piaguaje and farmer Hugo Camacho — and their American lawyer, Steven Donziger.

Meanwhile, in Ecuador, the Indigenous and peasant villagers won a $9.5 billion compensation judgment, confirmed by appellate courts and by Ecuador’s Supreme Court (Court of Cessation). In response, Chevron sold its assets in Ecuador, fled the country, refused to pay, and threatened the victims with a “lifetime of litigation.”

The company has since retained over 60 law firms, 2,000 lawyers, paralegals, six public relations firms, squads of private investigators, and at least one bribed witness, who later admitted to lying. Lawyers for the victims estimate Chevron has spent over $2 billion to avoid payment of the court judgement, the largest collection of SLAPP suits in history.

Gibson, Dunn & Crutcher (Gibson Dunn) promotes itself as a corporate “rescue squad” specializing in “shielding clients” from “billions in liability”. They boast of getting George W. Bush installed as US president by stopping a Florida vote recount, and shielding Lehman Brothers from liabilities in the largest bankruptcy filing in U.S. history.

Randy Mastro co-chairs the firm’s litigation department; infamous for a string of court censures for fabricating evidence, lying and other criminal misconduct. In 2015, the High Court of England sanctioned Gibson Dunn for fabricating evidence to frame the political rival of the firm’s client, the President of Djibouti, Africa.

In 2005, a federal court in California sanctioned Gibson Dunn for tampering with a witness, “obstruction, gamesmanship and flagrant disregard” of Court orders. In 2007, the Montana Supreme Court assessed a $9.9 million fine against Gibson Dunn for “blatantly and maliciously trying to intimidate” its adversary, using the judicial system for “legal thuggery”. The following year, a New York federal judge sanctioned the firm for “unacceptable shenanigans”, including hiding documents and outright lies. A California federal judge concluded that the firm’s misconduct is “a product of a culture which permeates” Gibson Dunn.

As Chevron faced losing the pollution case in Ecuador, CEO John Watson and General Counsel R. Hewitt Pate turned to Gibson Dunn’s “rescue squad” for help. The lawyers, led by Mastro, soon revealed their abusive tactics. An Oregon federal judge sanctioned the Gibson Dunn lawyers for using the discovery process — intended to provide information to opposing counsel — to harass a small legal non-profit assisting the Ecuadorian victims. In Ecuador, appellate judges rebuked Chevron’s new lawyers for threatening trial Judge Nicolas Zambrano with criminal charges and prison unless he dismissed the case.

However, the Ecuadorian decision stood, Chevron owed its victims $9.5 billion, and Randy Mastro went to work harassing the victims, their lawyers, and the Ecuadorian justice system before a gleefully encouraging Judge Kaplan in New York.

Judge as prosecutor

Chevron and Gibson Dunn knew precisely who Judge Kaplan was, when they launched their series of SLAPP suits through his court.

In 2004, Kaplan allowed the NY Police Department to arrest any “recognizable group” of 50 or more cyclists riding together, as a way of stopping bicycle protests, specifically by the environmental group Critical Mass. Although the First Amendment of the US Constitution protects “freedom of assembly”, Kaplan argued that “traffic flow” held precedent over the right of citizens to assemble in peaceful protest. When Lehman Brothers employees sued Lehmans for failing to protect their pension plan, violating the Employee Retirement Security Act, Kaplan simply dismissed the case.

At The Robing Room, a judicial review forum, one commenter warned, “if you are representing big business interests, Judge Kaplan will find a way to rule in your favor. If you going up against big business interests, you are out of luck.” Others describe Kaplan as “working for business interests” and “part of the old-boy network.”

“We knew that Gibson Dunn and Chevron had selected Judge Kaplan as an ally,” said Steven Donziger, lawyer for the original Ecuadorian plaintiffs, Frente de Defensa de la Amazonía (FDA).“A normal judge’s responsibility is to insure impartiality, decorum, and legal integrity. In the RICO SLAPP suit, Kaplan served more as a member of the prosecution team. He mocked defendants, laughed at defense motions, praised Chevron, granted their every wish, and insulted the entire Ecuadorian justice system.”

Marathon of preliminaries

The highly unusual three year discovery and deposition process, prior to the actual trial, revealed a succession of nightmarish legal irregularities:

No media confidentiality: The SLAPP began in April 2010, when Kaplan forced filmmaker, Joseph Berlinger to turn over 600 hours of outtakes from his acclaimed 2009 documentary, Crude: The Real Price of Oil. Kaplan ridiculed the journalist’s request to protect confidential sources. “If this is your best argument,” jeered Kaplan, “you’re in a lot of trouble.” A media coalition — including The New York Times, NBC, and HBO — filed a First Amendment objection with the court, and Robert Redford, writing in the Huffington Post, called the decision a “shocking” betrayal of US First Amendment rights.

Insulting a foreign Court: Kaplan and Chevron lawyer Mastro used the Berlinger hearings to insult the courts in Ecuador, where Chevron had insisted the trial be held. Mastro called the Ecuador courts “a sham” that would cause “any American to shudder at … what passes for a judicial system.” Kaplan openly laughed when asked to delay until an Ecuadorian court could provide input. “If this were the High Court in London,” Kaplan taunted, “you can be sure I’d wait.” Despite Mastro and Kaplan’s disdain here, the Ecuadorian justice system appears as impartial and honourable as any such system in any modern nation.

Insulting the defendants: Throughout the proceedings and in written memoranda, Kaplan referred to the 30,000 class-action victims in Ecuador as “so-called plaintiffs”, suggesting that their “standing in this matter is debatable to say the least.” He referred to their case in Ecuador as “the game” and “not a bona fide litigation.” When Donziger’s attorney made a routine request for time to review thousands of documents, Kaplan scoffed, “Don’t tell me about how long Mr. Donziger needs. I know the game here.”

No attorney-client confidentiality: Kaplan invoked a minor technicality to claim that Donziger, the victims’ US lawyer, had “waived” all attorney-client privilege, and insisted he turn over to Chevron lawyers 17-years of confidential communications with his clients, including, emails, notes, and his entire hard drive. Defense attorneys called this “the most sweeping forced production of privileged documents in history.”

Monster deposition:Federal rules typically limit individual depositions to one day, possibly two days in extraordinary cases. Once Chevron had all of Donziger’s confidential client files, they forced him, with Kaplan’s approval, to endure an unorthodox 18 days of discovery deposition, during which 20 or more Chevron/Gibson Dunn lawyers pelted him with petty and personal questions. According to Donziger’s RICO case rebuttal, Chevron’s lead PR consultant, revealed in 2009: “Our L-T [long-term] strategy is to demonize Donziger.”

Special Master: Judge Kaplan appointed his former law partner, Max Gitter, as “Special Master” or private judge to rule over the protracted deposition, paid entirely by Chevron. According to the Amazon Defense Coalition, Kaplan approved secret payments to Gitter, totaling “likely well over $1 million.” Like Kaplan, Gitter approved Chevron requests and dismissed defense requests. He revealed his conspiratorial relationship with Mastro and Chevron when he made a ruling based on the contents of a future Chevron document that had not yet been filed with the court. Upon realizing his error, he muttered, “Mr. Mastro, am I correct about that?” Mastro responded, “absolutely correct.”

Judge proposes Chevron strategy:During the discovery hearings, Judge Kaplan exclaimed: “Do the phrases Hobbs Act, extortion, RICO, have any bearing here?” signaling to Chevron lawyers that they should file a racketeering complaint. Shortly thereafter, on February 1, 2011, Chevron filed their RICO complaint against Donziger, Piaguaje, and Camacho, claiming that the 10-year case before three levels of Ecuadorian courts amounted to criminal extortion. Chevron asked for billions of dollars in damages, from Donziger, a sole practitioner, and two impoverished villagers, which required a jury trial. Kaplan accepted the claim and assigned the case to himself.

International powers:After the RICO filing, Judge Kaplan presumed to issue a universal injunction, allegedly prohibiting any court in any nation from enforcing the environmental judgment against Chevron, two days before the Ecuadorian court announced that judgment. In September, 2011, the US Court of Appeals vacated the injunction, chastizing Kaplan for inflicting damage on international comity, the principle among modern nations to show respect for each other’s legal systems.

Implacable hostility: By this time, Donziger and the Ecuadorian victims were almost broke, which Donziger claims, “was the whole point of Mastro’s and Chevron’s strategy.” Nevertheless, renowned defense attorney, John Keker, a former US marine, highly respected for legal integrity, offered to help the beleaguered defendants. “This case has degenerated into a Dickensian farce,” Keker said. “Encouraged by this Court’s implacable hostility toward Donziger, Chevron will file any motion, however meritless, in the hope that the Court will use it to hurt Donziger.”

Fishing expeditions:Chevron served Donziger, Piaguaje, and Camacho, with hundreds of new document requests and over a thousand “requests for admission,” disputed claims that Chevron could argue were “admitted” if the defendants could not respond. The impoverished Ecuadorian peasants kept almost no documents and rarely engaged in written communication. The requests imposed a massive new expense for the defendants.Kaplan also allowed Chevron to serve subpoenas on Amazon Watch, Google, Microsoft, and others, seeking email accounts to track the activities of some 100 lawyers, students, journalists, and academics that supported the Ecuadorian’s cause. “These were fishing expeditions,” Donziger explained, “that violated everyone’s right to privacy.”

Scorched Earth:By May 2013, before the actual trial had even begun, the defendants were thoroughly destitute, and their defense attorneys — Keker and Craig Smyser, who had been deferring payment — could no longer continue. Both attorneys expressed outrage at Kaplan’s refusal to grant common sense measures to streamline the burdensome process. “Through scorched-earth litigation, executed by its army of hundreds of lawyers,” said Keker, “Chevron is using its limitless resources to crush defendants and win this case through might rather than merit.”Smyser, called the lawsuit a “legal blitzkrieg” that Kaplan not only tolerated but “encouraged”.

After four years of gruelling discovery depositions and document demands by Chevron — the exhausted defendants’ best hope for justice rested on the trial jury. A jury would remove some decision-making power from Kaplan, and would hear overwhelming evidence of Chevron pollution and legal misdeeds. However, Kaplan had new surprises in store.

[pix Ecuadorians and P. Bellegarde, court, 2018 © Johanna LunaHugo Camacho, Amazon Defense Coalition (second from left) was one of the villagers named in the US RICO case. Here, he joins Domingo Paes, Achuar; Canadian Assembly of First Nations Grand Chief Perry Bellegarde, Janeth Cuji, Kichwa; and Rafael Pandam, President of the Indigenous Amazonian Parliament of Ecuador, in a Canadian court]

The RICO Trial

No jury:On the eve of the trial, Chevron decided, with Kaplan’s approval, to drop their financial damages claim, which meant that Kaplan could drop the jury and decide the outcome himself. “Chevron,” said Donziger, “apparently panicked at the notion of trying to sell their fraud and extortion claims to anyone other than Kaplan.” The defense demanded a jury trial, based on their right to a jury in a RICO case, a long-standing legal principle in cases that carry criminal implications. Kaplan refused. He would decide himself about the defendants’ guilt or innocence.

No pollution talk: Even though Kaplan had presumed the authority to “set aside” an Ecuadorian environmental judgment with a 10-year, 220,000-page evidentiary record of Chevron’s environmental crimes, and to characterize that entire proceeding as an act of “extortion,” the corporate-friendly judge barred the defense from even mentioning anything “related to the existence of pollution in Ecuador.” The pollution, he said, was “not relevant.”

No dirty-tricks talk:Furthermore, Kaplan ruled that the defense could not mention evidence of Chevron’s campaign or Gibson Dunn’s campaign of “dirty tricks” operations, past courtroom crimes, lies, and fabricated evidence. Chevron, of course, was allowed to discuss any alleged history of the defendants, dredged up from four years of ruthless depositions, spies, and private investigators.

Tsunami of paper: On the first day of trial, Chevron placed over 2,500 exhibits into evidence en masse, nearly 10,000 separate assertions, to which the impoverished defense was given less than a week to respond. If they failed, Kaplan could deem the defendants’ objection “waived.”

Anonymous witnesses: Kaplan accepted testimony from Chevron witnesses whose identity they kept hidden from the defense, preventing the normal investigation necessary for effective cross-examination. The defense expressed outrage at this violation of “basic legal principles,” which they said would “be right at home in the Spanish Inquisition.”

Editing the evidence: At this point, the defense caught Randy Mastro presenting edited video, in which he had cut out critical contextual words from Mr. Donziger’s comments. According to trial transcripts, when the defense brought this to the judge’s attention, Kaplan adjourned, did some research, and responded: “About 15 words were edited out … I assume there was no attempt to mislead.”

Chevron’s claim that the entire Ecuadorian judicial process — ten years of court trials and appellate reviews in three levels of courts — had been “fraudulent” rested, however, almost entirely upon one, single witness.

[ pix Steven Donziger at oil well © Lisa GibbonsSteven Donziger, lawyer for the Ecuador plaintiffs for 25 years, at oil site in Ecuador’s Amazon]

The Witness

In American Lawyer magazine, in 2009, David Hechler, describes Gibson Dunn’s “game plan,” to shield clients from liability in foreign pollution cases: “find witnesses” who will accuse the foreign court of “fraud.” In a separate American Lawyer story, Gibson, Dunn lawyer Robert Cooper, explains, “We prepared the witnesses to tell our story.”

In Ecuador, on behalf of Chevron, Gibson Dunn found one such witness, Alberto Guerra, a former Ecuadorian judge who had been removed for misconduct, including accepting bribes. According to Amazon Watch, Chevron lawyer Andres Rivero and Chevron private investigator Yohi Ackerman paid Guerra $48,000 in cash, and agreed to pay him $12,000 a month for at least three years. Chevron lawyers allegedly negotiated and smoothed Guerra’s immigration into the US, paid for his family to move, hired lawyers to get them green cards, and bought them a car, auto insurance, and health insurance.

Justice Now protest, Ecuador. Photo courtesy of amazonwatch.orgJustice Now protest, Ecuador. Photo courtesy of amazonwatch.org]

According to a letter from the defense to the US Department of Justice, Chevron has paid Guerra at least $2 million in cash and benefits, in exchange for false testimony. According to an affidavit by legal ethicist Erwin Chemerinsky — Founding Dean of the University of California at Irvine School of Law and a prominent US legal scholar — these payments to Guerra violated fundamental ethical rules of law.

In New York, over 53 days by Guerra’s admission, Gibson Dunn’s Randy Mastro helped him prepare his testimony about “fraud” in Ecuador. On the stand before judge Kaplan, Guerra claimed that Ecuadorian lawyers promised presiding judge Nicolas Zambrano $500,000 to allow them to write the final judgment, which Guerra claimed they gave to Zambrano on a flash drive. Guerra also claimed that he possessed a draft copy of the fraudulent judgment and that he met with the plaintiffs’ American lawyer Steven Donziger to discuss the alleged “bribe”.

Quickly, however, Guerra’s story fell apart.Immigration records showed that Donziger was not even in Ecuador when Guerra claims the meeting took place. No evidence of a flash drive was ever produced, and Guerra’s computers did not turn up the draft judgment, or even a single email from the plaintiffs’ attorneys.When this came to light, Guerra changed his story, claiming that after “strengthening my memory”he now recalled working on this draft, not at home, but rather had taken an eight-hour bus ride into the jungle, where he claimed he edited the judgment on a laptop handed to him by one of the Ecuadorians’ lawyers.

However, this story crumbled as well when forensic analysis showed that the trial judge had never downloaded the judgement from a flash drive and, rather, had opened and saved his own written judgement document more than 400 times over three months on his own office computer.

Furthermore, after the RICO trial, in a separate arbitration under the US-Ecuador Bilateral Investment Treaty, Guerra admitted under oath that he had lied to Chevron’s lawyers about his involvement in the alleged attempt to influence the Ecuadorian judgement. “I did exaggerate about [some things], yes,” said Guerra under questioning. When a lawyer asked him, “And among the ways you tried to leverage your position was to falsely tell the Chevron representatives that the Plaintiffs had offered you $300,000?” Guerra answered, “Yes, sir. I lied there.”

Nevertheless, Kaplan accepted Guerra’s testimony and rejected defense efforts— Motion to strike testimony and Motion for terminating sanctions — to strike Guerra’s testimony, which the defense claims was fabricated during the 53-day session with Chevron lawyers.

The final twist appeared as Judge Kaplan crafted a judgment. By dropping the money claim, Chevron had avoided a jury but also undermined its own case. A plaintiff must seek either money for damages or an injunction, a court-ordered condition placed on the defendant. The Court of Appeals had already reversed Kaplan’s earlier injunction and could do so again. Without a money claim or injunction, Chevron lacked standing.

Perhaps to avoid this problem, Kaplan based his guilty verdict on a “non-statutory claim for equitable relief” from an allegedly fraudulent judgment. According to Donziger’s rebuttal, the decision lacked “due process,” since the claim had never been presented by Chevron or argued in court, and “relied on vague 18th and 19th century treatises” that “had been effectively repealed and replaced by the statutory framework for enforcement of foreign judgments … during the twentieth century.” Typically, a judge can’t invent a new claim for the plaintiff after a trial has ended.

The Republic of Ecuador filed an Amicus Brief, stating that “Judge Lewis Kaplan reached far beyond the issues presented to unfairly—and unnecessarily—impugn the integrity of the Republic of Ecuador.” They stated that Kaplan’s “unfounded commentary”, against a “sovereign democracy”, was based on “unreliable evidence”. The Ecuadorian court charged that Kaplan relied almost exclusively on one Vladimiro Álvarez Grau, an avowed political opponent of the Ecuadorian government. “Chevron sought out a favorable forum,” the Ecuadorian court wrote. “The District Court [Kaplan], fulfilling Chevron’s wishes, chose to make far-reaching judgments based primarily on the opinions of a single partisan.”

Finally, the Ecuadorian court confirmed that Chevron Corporation remained responsible for the impact of its pollution. “In 2005,” the court wrote, “ChevronTexaco dropped the name ‘Texaco’ and reverted to its original name, Chevron Corporation. There is no indication in the record before us that shortening its name had any effect on ChevronTexaco’s legal obligations. Chevron Corporation therefore remains accountable.”

Furthermore, in a separate discovery hearing, the US Third Circuit court cautioned: “The circumstances supporting [Chevron’s] claim of fraud largely are allegations and allegations are not factual findings.”

This historic SLAPP lawsuit, possibly the most expensive in history, appears to have failed, even after Kaplan’s decision. Foreign courts have ignored Kaplan’s injunction, and Donziger and his clients are making progress in Canadian courts, where the victims are attempting to collect the Ecuadorian judgment by seizing Chevron Canada’s assets, and where they have won three consecutive unanimous appellate court decisions. Donziger and the Ecuadorian villagers have said they would welcome Chevron to claim in Canada that the Ecuadorian judgment was fraudulent. “If they had to bring Guerra to Canada before a neutral judge,” says Donziger, “we believe the company’s entire RICO narrative will collapse.”

SLAPP suits represent a threat to public protest and free speech. They have no place in a democracy.

References and Links

Ecuador Supreme Court (Court of Cessation): court ruling in Ecuadorean class action vs. Chevron Corporation.

ACLU, Slapped: A Tool for Activists: ACLU

Chevron assets: Fortune magazine.

Chevron: 60 law firms and 2000 lawyers: Amazon Watch, CSR.

Chevron threatens plaintiffs with a “Lifetime of litigation.”: (1) “Chevron Accused of $2 Million Witness Bribery Plot in Ecuador Pollution Case, Alternet, January 31, 2018; and (2) Writ of Mandamus, Feb. 6, 2011: pdf

Gibson Dunn, “rescue squad,” “shielding clients”: Gibson Dunn promotions

Gibson Dunn censure by High Court of England: “Chevron Law Firm Gibson Dunn Blasted by High Court of England For Falsifying Evidence: Chevron Pit, March 25, 2015.” Montana Supreme Court assessed a $9.9 million fine against Gibson Dunn: Montana Supreme Court document, 05-378, 2007, MT 62.

Ecuador, appellate judges rebuke Chevron’s lawyers for threatening trial Judge Nicolas Zambrano.

Gibson Dunn in Ecuador: under scrutiny for trying to mislead Congress

California, 2005, censure of Gibson Dunn

Gibson Dunn sanctioned by a federal judge for harassing a witness in a discovery action in Oregon.

Comments about Judge Lewis A. Kaplan on legal review site: The Robing Room

Robert Redford objects to Kaplan denial of media confidentiality: Huffington Post

New York Times, NBC, and HBO file a First Amendment objection with the court. NPR

Kaplan and Mastro insult the courts in Ecuador: “Writ of Mandamus, US Court of Appeals, Second Circuit, Hugo Gerardo Camacho Naranjo and Javier Piaguaje Payaguaje, petitioners, filed by Attorneys: James E. Tyrrell Jr. NY, Julio C. Gomez, NY, and Carlos A. Zelaya, II, Feb. 6, 2011: pdf

Allegations of bias by Kaplan: Writ of Mandamus, Feb. 6, 2011: pdf; and “Chevron’s RICO Fraud” pdf

“Our L-T [long-term] strategy is to demonize Donziger.” — Chevron’s lead PR consultant, 2009: (1) “Chevron’s RICO Fraud” pdf and (2) “Chevron Accused of $2 Million Witness Bribery Plot in Ecuador Pollution Case, Alternet, January 31, 2018

Chevron’s RICO Fraud: An Abuse of Indigenous Peoples, the Environment, and U.S. Courts in the Chevron v. Donziger Case; S. Donziger and the Ecuadorian Legal Team: pdf.

Defendant’s right to a jury in a RICO case: CSR, 6 February, 2014.

Defense calls anonymous witnesses a violation of “basic legal principles … right at home in the Spanish Inquisition.”: US District Court, Southern District of New York, Case 1:11-cv-00691-LAK-JCF Document 1154 Filed 05/14/13, “Opposition to Chevron’s Motion for an order to Further protecting the Confidential declaration of Doe3.”

Gibson Dunn “game plan”: (1) “District Court Denies Enforcement of $97 Million Nicaraguan Judgment,” Gibson Dunn; and (2) “The Kill Step,” David Hechler, Sept. 20, 2009, The American Lawyer

Randy Mastro and Gibson Dunn lawyers preparing Guerra over 53 days: Huffington Post, Paul Paz y Miño, May 30, 2017.

Guerra bribed by Chevron: (1) “Chevron Accused of $2 Million Witness Bribery Plot in Ecuador Pollution Case, Alternet, January 31, 2018; (2) “Chevron’s RICO Fraud,” legal rebuttal: pdf. Guerra bribed by Chevron: Huffington Post, Dec. 6, 2017; (3) “Chevron Executives Misused Millions of Shareholder Dollars To Bribe a Witness,” Amazon Watch, May 30, 2017.

Alberto Guerra admits lying in RICO testimony: (1) US Court of Appeals for the Second Circuit, Chevron Corporation vs. Steven Donziger, Hugo Gerardo Camacho Naranjo, et. al.; No. 14-826-cv(L), November 5, 2015. (2) “Chevron’s Star Witness Admits to Lying in the Amazon Pollution Case, Vice News, Eva Hershaw, October 26, 2015 (with Testimony from arbitration under the US-Ecuador Bilateral Investment Treaty); (3) U.S. Courts Endorsed Chevron’s Fabricated Evidence: Ecuadorian Villagers and Counsel Slam Chevron’s Star Witness for Lying and Offer Rebuttals to 12 False Findings by Second Circuit Court of Appeals”: CSR wire, May 16, 2017; and (4) Chevron’s RICO Fraud: pdf.

“Judge Kaplan Drastically Overreached With “Unlawful” Injunction To Protect Chevron, International Law Experts Say,” Rainforest Action Network.

Defense documents requesting to strike Guerra’s false testimony, citing evidence that Guerra lied, and admitted to lying: (1) Motion to strike testimony of Alberto Guerra Bastides, pdf and (2) Motion for terminating sanctions, pdf.

“Rainforest Groups Blast U.S. Judge Kaplan for Ruling Designed to Help Chevron Evade $9.5b Pollution Liability,” CSR wire, March 9, 2018.

Republic of Ecuador’s Amicus Brief denouncing the Kaplan judgement based on false testimony from a bribed witness, and denouncing Kaplan’s insults toward Ecuadorian courts.

US Third Circuit court, Chevron’s claim of fraud are allegations, not facts: Writ of Mandamus, US Court of Appeals, Case: 11-2259, 06/02/2011.

Kaplan’s judgement based on 18th and 19th century treatises: Judgement transcript: District Court, Southern District of New York: Case 1:11-cv-00691-LAK-JCF, Document 1874, Filed 03/04/14, Page 330 of 497.

Chevron lacked standing: (Article III , U.S. Constitution; the US Supreme Court has held that federal courts may hear “cases and controversies” but many not simply issue advisory opinions if there is no claim for “relief.”

“In Canada, Chevron Faces New Risks From $12b Ecuador Pollution Judgment As Shareholders Step up Pressure,” Amazon Defense Coalition, FDA, March 23, 2018

==

https://theintercept.com/2020/01/29/chevron-ecuador-lawsuit-steven-donziger/

LAST AUGUST, DURING the second-hottest year on record, while the fires in the Amazon rainforest were raging, the ice sheet in Greenland was melting, and Greta Thunberg was being greeted by adoring crowds across the U.S., something else happened that was of great relevance to the climate movement: An attorney who has been battling Chevron for more than a decade over environmental devastation in South America was put on house arrest.

Few news outlets covered the detention of Steven Donziger, who won a multibillion-dollar judgment in Ecuador against Chevron over the massive contamination in the Lago Agrio region and has been fighting on behalf of Indigenous people and farmers there for more than 25 years. So on August 6, Donziger left a Lower Manhattan courthouse unnoticed and boarded the 1 train home with an electronic monitoring device newly affixed to his ankle. Save for the occasional meeting with his lawyer or other court-sanctioned appointment, he has remained there ever since.

“I’m like a corporate political prisoner,” Donziger told me as we sat in his living room recently. The attorney, who is 6-foot-3, graying, and often used to be mistaken for New York Mayor Bill de Blasio when he was able to walk the city streets, was surprisingly stoic and resigned about his predicament during my two visits to the apartment he shares with his wife and 13-year-old son. But on this particular Wednesday, as the winter sunlight in his living room was dimming and the charger for his spare ankle bracelet battery flashed on a nearby shelf, his optimism about his epic battle against one of the biggest oil companies in the world seemed to be flagging. “They are trying to totally destroy me.”

Donziger is not exaggerating. As he was arguing the case against Chevron in Ecuador back in 2009, the company expressly said its long-term strategy was to demonize him. And since then, Chevron has continued its all-out assault on Donziger in what’s become one of the most bitter and drawn-out cases in the history of environmental law. Chevron has hired private investigators to track Donziger, created a publication to smear him, and put together a legal team of hundreds of lawyers from 60 firms, who have successfully pursued an extraordinary campaign against him. As a result, Donziger has been disbarred and his bank accounts have been frozen. He now has a lien on his apartment, faces exorbitant fines, and has been prohibited from earning money. As of August, a court has seized his passport and put him on house arrest. Chevron, which has a market capitalization of $228 billion, has the funds to continue targeting Donziger for as long as it chooses.

In an emailed statement, Chevron wrote that “any jurisdiction that observes the rule of law should find the fraudulent Ecuadorian judgment to be illegitimate and unenforceable.” The statement also said that “Chevron will continue to work to hold the perpetrators of this fraud accountable for their actions, including Steven Donziger, who has committed a litany of corrupt and illegal acts related to his Ecuadorian judicial fraud against Chevron.”

The developments that led to Donziger’s confinement were, like much of the epic legal battle he’s been engaged in for decades, highly unusual. The home confinement is his punishment for refusing a request to hand over his cellphone and computer, something that’s been asked of few other attorneys. To Donziger, who had already endured 19 days of depositions and given Chevron large portions of his case file, the request was beyond the pale, and he appealed it on the grounds that it would require him to violate his commitments to his clients. Still, Donziger said he’d turn over the devices if he lost the appeal. But even though the underlying case was civil, the federal court judge who has presided over the litigation between Chevron and Donziger since 2011, Lewis A. Kaplan, drafted criminal contempt charges against him.

In another legal peculiarity, in July, Kaplan appointed a private law firm to prosecute Donziger, after the Southern District of New York declined to do so — a move that is virtually unprecedented. And, as Donziger’s lawyer has pointed out, the firm Kaplan chose, Seward & Kissel, likely has ties to Chevron.

Making the case even more extraordinary, Kaplan bypassed the standard random assignment process and handpicked someone he knew well, U.S. District Judge Loretta Preska, to oversee the case being prosecuted by the firm he chose. It was Preska who sentenced Donziger to home detention and ordered the seizure of his passport, even though Donziger had appeared in court on hundreds of previous occasions.

[pix]

A Tainted Witness

Despite Donziger’s current predicament, the case against Chevron in Ecuador was a spectacular victory. The twisted legal saga began in 1993, when Donziger and other attorneys filed a class-action suit in New York against Texaco on behalf of more than 30,000 farmers and Indigenous people in the Amazon over massive contamination from the company’s oil drilling there. Chevron, which bought Texaco in 2001, has insisted that Texaco cleaned up the area where it operated and that its former partner, the national oil company of Ecuador, was responsible for any remaining pollution.

At Chevron’s request, the legal proceedings over the “Amazon Chernobyl” were moved to Ecuador, where the courts were “impartial and fair,” as the oil company’s attorneys wrote in a filing at the time. The move to Ecuador, where the legal system does not involve juries, may have also appealed because it spared Chevron a jury trial. In any case, an Ecuadorian court ruled against Chevron in 2011 and ordered the company to pay $18 billion in compensation, an amount that was later reduced to $9.5 billion. After years of struggling with the health and environmental consequences of oil extraction, the impoverished Amazonian plaintiffs had won a historic judgment from one of the biggest corporations in the world.

But Donziger and his clients never had a moment to savor their David-over-Goliath victory. Even though the ruling was subsequently upheld by the Ecuadorian Supreme Court, Chevron immediately made clear that it would not be paying the judgment. Instead, Chevron moved its assets out of the country, making it impossible for the Ecuadorians to collect.

That year, Chevron filed a Racketeer Influenced and Corrupt Organizations, or RICO, suit against Donziger in New York City. Although the suit originally sought roughly $60 billion in damages, and civil trials involving monetary claims of more than $20 entitle a defendant to a jury, Chevron dropped the monetary claims two weeks before the trial.

In its statement, Chevron wrote that the company “focused the RICO case on obtaining injunctive relief against the furtherance of Donziger’s extortionate scheme against the company.”

Instead, that case was decided solely by Kaplan, who ruled in 2014 that the Ecuadorian judgment against Chevron was invalid because it was obtained through “egregious fraud” and that Donziger was guilty of racketeering, extortion, wire fraud, money laundering, obstruction of justice, and witness tampering.The decision hinged on the testimony of an Ecuadorian judge named Alberto Guerra, who claimed that Donziger had bribed him during the original trial and that the decision against Chevron had been ghostwritten.

Guerra was a controversial witness. Chevron had prepped him on more than 50 occasions before his testimony, paid him hundreds of thousands of dollars, and arranged for the judge and his family members to move to the United States with a generous monthly stipend that was 20 times the salary he received in Ecuador. In 2015, when Guerra testified in an international arbitration proceeding, he admitted that he had lied and changed his storymultiple times. According to Chevron, Guerra’s inaccuracies didn’t change the thrust of his testimony.For his part, Judge Kaplan wrote that his court “would have reached precisely the same result in this case even without the testimony of Alberto Guerra.” In its statement, Chevron said that Guerra was relocated to the U.S. for his safety and noted that the court found that the company’s contacts with the Ecuadorian judge were “proper and transparent.”

Lawyers for Donziger said the changes in Guerra’s testimony completely undermined his original bribery allegations, which Donziger has consistently denied. In any case, that evidence emerged after the trial, and an appeals court declined to consider the new information and ruled against Donziger in 2016.

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“He has effectively been convicted of bribery by the finding of a single judge in a case in which bribery wasn’t even the charge.”

}:

Had Donziger been criminally charged with bribery, a jury would have assessed Guerra’s credibility. Instead, in the RICO case, which was civil, the decision about a key witness came down to one person — Kaplan — who chose to believe him. That choice has set the stage for the legal losses Donziger has suffered since, according to some close watchers of the Chevron case.

“On the basis of Kaplan saying, ‘I believe this witness; I find Donziger guilty of the crime of bribery of the judge’ — on the basis of that, he’s been destroyed. That is the pinnacle element of all of the other claims against him. And if you take that one out, the rest of them — they’re just not there,” said Charles Nesson, an attorney and Harvard Law School professor. “He has effectively been convicted of bribery by the finding of a single judge in a case in which bribery wasn’t even the charge,” Nesson said of Donziger. “I teach evidence, that you have to prove what you assert. But the proof in this case is the thinnest.”

Nesson, who represented Daniel Ellsberg in the Pentagon Papers case and the plaintiffs in the suit of W. R. Grace featured in the book and film “A Civil Action,” teaches Donziger’s case in his “Fair Trial” course, using it as an example of a decidedly unfair trial. “Donziger epitomizes a person in asymmetric civil litigation who can now be denied a fair trial,” he explains to his students.

Nesson is one of several legal scholars who have opined that Kaplan has a soft spot for Chevron, which the judge once described as “a company of considerable importance to our economy that employs thousands all over the world, that supplies a group of commodities, gasoline, heating oil, other fuels, and lubricants on which every one of us depends every single day.”

In contrast, the judge has exhibited antipathy for Donziger, according to his former lawyer, John Keker, who saw the case as a “Dickensian farce,” in which “Chevron is using its limitless resources to crush defendants and win this case through might rather than merit.” Keker withdrew from the case in 2013 after notingthat “Chevron will file any motion, however meritless, in the hope that the court will use it to hurt Donziger.”

Donziger’s current prohibition from working, traveling, earning money, and leaving his home shows how successful Chevron’s strategy has been. But even as his fate hangs in the balance, Donziger’s case matters far beyond the life of this one lawyer.

“It should be nothing short of terrifying for any activist challenging corporate power and the oil industry in the U.S.,” said Paul Paz y Miño, associate director of Amazon Watch, an organization devoted to the protection of the rainforest and Indigenous people in the Amazon basin. “They’ve made it clear there’s no amount of money that’s too much to spend on this case,” he said of Chevron. “They will stop at nothing.”

Related

Under Left- and Right-Wing Leaders, the Amazon Has Burned. Can Latin America Reject Oil, Ranching, and Mining?

The Chevron case may be most devastating for the plaintiffs in the Amazon, who never received their judgment despite being left with hundreds of unlined waste pits and contaminated water and soil from millions of gallons of spilled crude oil and billions of gallons of dumped toxic waste. Everything that’s happened to Donziger “is small potatoes compared to the fact that Kaplan has rendered the damage the company actually did as totally irrelevant,” said Nesson.

But the latest twists and turns in the Chevron case may also be particularly bad news for climate activists. A mere 20 companies are responsible for a third of the greenhouse gases emitted in the modern era; Chevron ranks second only to Saudi Aramco among them. And it’s increasingly clear that addressing the climate crisis will require confronting these mega-emitters, whose resources for litigation dwarf that of any individual.

Making Chevron and other companies clean up the messes created by their oil production will speed the transition away from fossil fuels, according to Rex Weyler, an environmental advocate who co-founded Greenpeace International and directed the original Greenpeace Foundation. “If hydrocarbon companies are forced to pay for the true costs of their product, which include these environmental costs, it will make the alternative energy systems more competitive,” said Weyler.

Accordingly, Weyler feels that the climate movement should focus on Chevron’s case — and Donziger’s legal battle. “One of the most effective things climate activists can do right now to change the system would be to not let Chevron get away with polluting in these countries, whether Ecuador, Nigeria, or anywhere” said Weyler. While some human rights and environmental advocates have tried to call attention to Donziger’s case and Chevron’s bullying of him, Weyler felt that the outcry should be louder.

After seeing what’s happened to Donziger, and some of his former allies, whom Chevron has gone after as “nonparty co-conspirators,” people may be afraid to stand up to the company. Donziger himself is living in fear. There is no set punishment when a judge files for criminal contempt of court, so he spends his days worrying over what will happen to him next. “It’s scary,” he told me. “I don’t know what they’re thinking.”

But Weyler pointed out that Chevron, which could still be forced to pay the multibillion-dollar judgment by courts in another country, is also afraid. “They are afraid of the precedent. Not only is Chevron afraid, the entire extraction industry is afraid of the precedent,” said Weyler. “They do not want to be held responsible for the pollution of their industry.”

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omfg

https://www.csrwire.com/press_releases/41282-Report-Shows-Chevron-Lawyers-at-Gibson-Dunn-Falsified-Evidence-to-Target-Steven-Donziger-in-Ecuador-Pollution-Case

NEW YORK, Aug. 15 /CSRwire/ - The New York bar’s unprecedented attempt to suspend prominent corporate accountability attorney Steven Donziger without a hearing after he helped Ecuadorian Indigenous peoples win a $9.5 billion environmental judgment against Chevron is based on false testimony from a paid company witness coached 53 days by lawyers at the firm Gibson Dunn & Crutcher, according to a bombshell report produced by one of the world’s leading forensic computer investigators.

Donziger still maintains his law license and is helping his clients in Ecuador’s Amazon rainforest enforce their judgment by trying to seize Chevron’s substantial assets in Canada, where three appellate courts have issued unanimous rulings in their favor. (See here.) But behind the scenes,Chevron’s batallion-sized U.S. legal team – it has included 2,000 lawyers from at least 60 firms at a cost of at least $2 billion – has trained its sites on demonizing Donziger as part of a new corporate “playbook” invented by the company’s attorneys at the Gibson Dunn firm and marketed to scandal-plagued clients facing major liabilities.

(See this article for background on Chevron’s intimidation campaign and here for an article in the Huffington Post about how Chevron’s defense has unraveled.)

According to multiple sources, the Gibson Dunn marketing playbook involves what the firm calls the “kill step” to defeat the enforcement in the U.S. of civil money judgements obtained from foreign courts. The “kill step” usually involves accusing opposing counsel of “fraud” and other misconduct to try to intimidate them into withdrawing, thereby leaving the corporation’s victims defenseless and unable to continue with their cases. If actual evidence of fraud does not exist, as in the Ecuador matter, the Gibson Dunn lawyers will hire investigators to bribe foreign witnesses to concoct false stories of “fraud” about opposing counsel to be presented in U.S. courts; the firm’s lawyers are theoretically protected from any downside risk by the general inability of U.S. courts to force foreigners to appear or be deposed.

The Gibson Dunn “kill step” is now being deployed against Donziger, who faces an interim suspension by the New York bar after staff attorneys designated him as an “immediate threat to the public order” based on highly disputed testimony from a Chevron-paid witness who has admitted under oath that he repeatedly lied to the company. Prominent members of the legal community, including First Amendment lawyer Marty Garbus and Harvard Law Professor Charles Nesson, expressed “shock” and “dismay” at the bar’s decision to suspend Donziger without a hearing. Donziger is fighting the allegations in a post-suspension hearing that likely will take place in September and be open to the public.

Gibson Dunn used the same “kill step” strategy roughly ten years ago on behalf of the Dole Food Company, which faced major liability in Nicaraguan courts for causing infertility in banana workers after it used an illegal pesticide that had been banned in the United States. According to multiple sources, evidence emerged in the Dole case that Gibson Dunn’s lawyers and investigators engaged in perjury, witness bribery, and fabrication of evidence to have the company’s liability thrown out of a California state court, according to legal documents. A key part of the strategy was an attack campaign leveled against the U.S. lawyer for the Nicaraguan victims, Jorge Dominguez, that included an attempt to have him disbarred, according to lawyers and others who worked on the matter.

Among other violations in the Dole case, Gibson Dunn’s lawyers hired an investigations firm in Mexico (called Investigative Research and headed by ex-CIA agent, Douglas Beard) to recruit and pay a Nicaraguan man, Jamie Gonzalez, to provide a false affidavit that fabricated a meeting attended by the Nicaraguan trial judge where the case supposedly was “fixed” against Dole. Although the meeting never took place, lawyers at the Gibson Dunn firm – including Scott Edelman, Ted Boutrous, and Andrea Neumann, all of whom orchestrated the scheme -- used the fabricated “evidence” of the meeting to have an ethics complaint filed against California lawyer Dominguez, much as the firm is now doing to Donziger with  testimony from an admittedly corrupt witness from Ecuador bribed with at least $2 million from Chevron to concoct his story. (The attempt to disbar Dominguez failed; the attempt to disbar Donziger in New York is pending but he still maintains his law license in another jurisdiction.)

Donziger, a Harvard Law graduate who has not received even a single client complaint in 25 years of legal practice, is fighting back against what he called a “wide-ranging conspiracy” hatched in Chevron’s executive suits and Gibson Dunn’s New York offices to try to taint him with “fraud” by using false or distorted evidence as a way to evade the liability to the Indigenous groups in Ecuador. Those involved in the conspiracy, he said, include Chevron General Counsel R. Hewitt Pate, Gibson Dunn’s chief of litigation Randy Mastro, as well as several Gibson Dunn lawyers who had previously been involved in corrupting the Dole cases, including Neumann and Boutrous. In a letter to the U.S. Department of Justice, Donziger laid out evidence that the Gibson Dunn firm and Chevron have carried out a conspiracy to falsify evidence as part of its “kill step” strategy to attack the Ecuador pollution judgment, now worth $12 billion with statutory interest.

“What Chevron and Gibson Dunn are doing to Steven is lawless and the kind of thing one normally sees in North Korea or Saudi Arabia, not in New York,” said Rex Weyler, the co-founder of Greenpeace and a supporter of the Ecuadorian communities. “It is shocking to witness how the New York judiciary has allowed itself to be used by Chevron and Gibson Dunn as a key arm of the company’s unethical litigation strategy that ultimately is designed to screw over some of the most vulnerable people on the planet who trust and rely on Steven to advocate for them. The Department of Justice needs to open an investigation of this law firm for its pattern of engaging in unethical and even criminal acts in the Ecuador case and others.”

The Gibson Dunn “kill step” in the Ecuador case resulted in a highly controversial civil “racketeering” judgment in 2014 from New York trial judge Lewis A. Kaplan against Donziger and his Ecuadorian clients that was based largely on the false testimony of Chevron’s paid witness, Alberto Guerra. Guerra’s payments have included an enormous monthly salary at least 20 times higher than his prior salary in Ecuador, health care, and the reimbursement of all income tax payments as well as expenses to move his entire family from Ecuador to the United States. Guerra admitted to taking bribes in Ecuador and has been on the Chevron payroll for several years at an undisclosed location in the United States without doing any work other than serving as a witness. (See this summary of Guerra’s perjury and this legal brief documenting Chevron’s and Gibson Dunn’s corrupt conduct.)

Guerra also has admitted under oath that he was coached for 53 days by Gibson Dunn’s lawyers, including Mastro and Avi Weitzman, before he went into Kaplan’s court and accused Donziger of approving a bribe to an Ecuador trial judge so the plaintiffs could “ghostwrite” the judgment against the oil major. Later, Guerra recanted key parts of his testimony under oath in a private arbitration proceeding while a forensic report proved he lied about both the bribe and the allegation that Donziger orchestrated the “ghostwriting” of the judge. Donziger has consistently denied Guerra’s allegations.

Despite what appear to be the many deep-seated and even fatal problems with Guerra’s testimony, two staff attorneys at the New York bar grievance committee – who oversee attorney conduct – relied on his story about judicial bribery in Ecuador to suspend Donziger from the practice of law without a hearing by designating the New York lawyer an “immediate threat to the public order”. Yet Kaplan’s findings, used by the New York bar in its decision, have been rejected by at least 17 appellate judges in Ecuador and by Canada’s entire Supreme Court when it ruled unanimously in favor of the Ecuadorians in a judgment enforcement action in that country. Four layers of courts in Ecuador – including the country’s Constitutional Court – have affirmed voluminous evidence that the oil major dumped billions of gallons of toxic waste into the rainforest, decimating indigenous groups and causing an outbreak of cancer that has killed or threatens to kill thousands of people.

(See here and here for comments by prominent lawyers, including Harvard Law Professor Charles Nesson and trial attorney Richard Friedman, in support of Donziger. See this article on how Ecuador’s Constitutional Court recently ruled 8-0 to affirm the judgment against Chevron. Here is a summary of the evidence against Chevron.) 

Donziger, who has been widely lauded for his public service work, criticized the New York bar for refusing to consider the extensive evidence that emerged after Kaplan’s trial that renders his findings erroneous or at least highly problematic. Donziger maintains wide support in the legal and environmental communities; several prominent environmental groups and lawyers, including Amazon Watch and Earth Rights International, have weighed in against Chevron with amicus briefs while Greenpeace Founder Weyler calls him a “hero” of the environmental movement. Musician Roger Waters even released a video on behalf of the Ecuadorians criticizing Kaplan.

Among the evidence ignored by the two staff attorneys of the bar grievance committee who are handling the matter – Jorge Dopico and Naomi Goldstein -- is a critical report from noted forensics expert J. Christopher Racich submitted in a parallel private arbitration proceeding initiated by Chevron against Ecuador’s government. The Racich report completely undermines Chevron’s defense strategy and renders Kaplan’s findings that the Ecuador judgment was “ghostwritten” as false, according to Aaron Page, a human rights lawyer who represents the Ecuadorians. (See here for the Racich report proving Chevron’s witness lied and here for a summary of that report.)

Racich’s investigation undermines Kaplan’s core findings that were then used by the bar grievance committee to suspend Donziger as follows:

**The report demonstrates that increasing amounts of the Ecuador judgment against Chevron were added to Word documents on the office computers of the Ecuador trial judge and that those documents were edited and saved in painstaking fashion more than 400 times. This corroborates the sworn testimony of the Ecuador trial judge, Nicolas Zambrano, that he wrote the judgment in his office and debunks the testimony of paid Chevron witness Guerra that it was given to the judge on a flash drive just prior to its issuance, after being written by the plaintiffs.

**There is no evidence from the Ecuador trial judge’s computers that any document was copied from a flash drive to create any part of the trial court judgment, as Chevron paid witness Guerra had claimed in testimony relied on by the New York bar staff attorneys to suspend Donziger. 

**Chevron’s paid expert, Spencer Lynch, independently examined the same computers and presented no evidence suggesting that any part of the Ecuador trial court judgment was received by trial judge Zambrano via email or from a flash drive – again debunking Guerra’s testimony.

**There is no document on the computer of Chevron witness Guerra that became the trial court judgment, directly undermining Guerra’s sworn testimony that he edited the judgment on his computer at the behest of the plaintiffs just before it was issued. 

According to the Racich report, the text and metadata of the documents on the computers of Ecuador trial judge Zambrano that contain the trial court judgment show that “these computers were used to create a document, add text to it, edit text within it, and save the document repeatedly over a four-month period of time.” “Furthermore, there is no evidence in the metadata that the versions of the [judgment documents] were provided in any way by Mr. Guerra, Pablo Fajardo [the lead Ecuadorian lawyer for the villagers], or anybody else,” Racich concluded.

Donziger criticized the bar grievance committee for relying on Kaplan’s findings and ignoring the Racich report and other critical evidence, while demanding that his designation as an “immediate threat to the public order” be lifted. He also demanded to be allowed a fact hearing to present the Racich report and other critical evidence that will demonstrate that Kaplan’s findings are erroneous and therefore cannot be used by the bar grievance committee as a basis for attorney discipline, although he believes they could be used as a basis for discipline against the Gibson Dunn lawyers who falsified evidence. Further underscoring the problems with the decision of the New York grievance committee is that the District of Columbia bar has decided to not move against Donziger based on the Kaplan decision given that the many problems with his findings and the fact that several issues involved are still being litigated in Canadian courts.

(For a detailed rebuttal of Kaplan’s erroneous findings, see Chevron’s RICO Fraud.)

“The bar grievance committee needs to demonstrate independence from Judge Kaplan and Chevron’s powerful and unethical law firm and really look hard at the evidence,” said Donziger. “In my opinion, it is a dereliction of duty for the New York grievance committee to assume that obviously flawed findings from a federal judge cannot be questioned when the judge never reviewed the Racich report or other critical evidence before coming to his conclusions, and when his findings have been contradicted by 17 appellate judges in another jurisdiction.

“Further, in my view there is indisputable evidence that Chevron’s lawyers at Gibson Dunn engaged in unethical and criminal activity to frame me with false witness testimony to please their most lucrative client, and that they have done this in other cases as part of a playbook marketed to high-paying corporations,” he added. “This begs the question: why is the New York bar grievance committee not investigating Chevron’s lawyers at Gibson Dunn for their patently unethical conduct, and instead focusing on me, a sole practitioner and human rights advocate?”

Gibson Dunn’s aggressive approach and willingness to cross the ethical line for its clients has frequently backfired against the law firm.

In a case eerily similar to Donziger’s experience, Gibson Dunn recently was sanctioned by the High Court of London for fabricating evidence to try to frame a political opponent of its client, then the President of the African nation of Djoubati. The Montana Supreme Court fined the firm $9.9 million for engaging in “legal thuggery” while a New York federal judge sanctioned Gibson Dunn for engaging in “unacceptable shenanigans” including hiding documents and outright lies. In the Ecuador case, the firm threatened the Ecuador trial judge with prison time unless he ruled in Chevron’s favor. (See this article by Greenpeace’s Weyler for a summary of Gibson Dunn’s many problems.)

Some of Donziger’s defenders, including human rights lawyer Page (see here), say he has been targeted with what is probably the most well-financed corporate retaliation campaign in history. Chevron in 2011 sued Donziger for $60 billion – thought to be the largest potential personal liability ever – before dropping the entire damages claim on the eve of Kaplan’s “racketeering” trial to avoid a jury of impartial fact-finders. Under the U.S. Constitution, a claim not involving money damages can be heard by a judge alone – a fact understood by Chevron that Donziger said guaranteed he would not be able to mount a meaningful defense given Kaplan’s obvious bias in favor of the company. (See this press release and this report for the many procedural and ethical problems with the Kaplan trial.)

The Racich report also corroborates :{the sworn testimony of Donziger:(style="padding:0px;margin:0px;border:0px;font-weight:inherit;font-style:inherit;vertical-align:baseline"):}:, who repeatedly has said under oath he engaged in no wrongdoing and that Guerra's testimony was false. For Donziger’s main appellate brief challenging Kaplan’s factual findings, see :{here:(style="padding:0px;margin:0px;border:0px;font-weight:inherit;font-style:inherit;vertical-align:baseline"):}:.

For purposes of protecting his due process rights and bearing witness to a flawed process, Donziger said he  plans to invite the public to his post-suspension hearing where he will try to reverse the bar’s decision to designate him as an “immediate threat to the public order.” However, the first “referee” appointed to oversee that hearing, corporate defense attorney Paul Doyle, resigned after several prominent lawyers backed Donziger and criticized the lack of due process afforded by the grievance committee. It also turns out that Doyle had represented Union Carbide in the Bhopal disaster in India.

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https://www.greenpeace.org/international/story/16448/chevrons-slapp-suit-against-ecuadorians-corporate-intimidation/

many lnx

Chevron’s SLAPP suit against Ecuadorians: corporate intimidation

by Rex Weyler 11 May 2018|

These days, when powerful corporations get caught breaking the law, polluting the Earth, violating human rights, or all of those crimes simultaneously, they don’t pay the fine and make amends, like normal citizens. They attack.

Corporate lawyers spend millions to assault victims withSLAPPs (Strategic Lawsuit Against Public Participation).The most recent SLAPP strategy in the US, popularized by attack-dog New York law firm Gibson Dunn, employs US “racketeering” (RICO) laws against environmental groups, victims of pollution, and their lawyers.

The purpose of a SLAPP lawsuit is not necessarily to win in court, but rather to intimidate, harass, demonize, and bankrupt the weaker opponent. “The powerful use their abundance of resources to enact revenge,” explains the American Civil Liberties Union. Many jurisdictions now ban SLAPP suits, but corporations still shop around for lax jurisdictions and sympathetic judges.

In 2013, for example, when Greenpeace Canada exposed Resolute Forest Products’ destructive logging in Québec, Resolute filed a retaliatory $7-million lawsuit against Greenpeace Canada and two staff members in Ontario, which did not yet have anti-SLAPP laws. Later, Resolute used US courts to attack Greenpeace USA and Greenpeace International under the Racketeer Influenced and Corrupt Organizations (RICO) Act, created in 1970 to prosecute organized crime syndicates. “This lawsuit,” said Greenpeace US director Annie Leonard, “is an attempt to silence, vilify, and criminalize activism.” As with most of these intimidation lawsuits, the RICO case in the US was thrown out of court, but Resolute promptly filed an amended suit.

In perhaps the most vindictive SLAPP in history, Chevron — one of the world’s largest corporations, with over $260-billion in assets — found a sympathetic New York judge to accept a RICO lawsuit against the victims of its vast oil pollution in Ecuador’s Amazon basin.

Legal thuggery

Chevron’s Amazon troubles began in 2000 when it purchased Texaco, inheriting liability for the company’s oil field pollution in Ecuador, known as theAmazon Chernobyl.Texaco/Chevron had dumped some 16 billion gallons of toxic wastewater into rivers and abandoned over 900 carcinogenic waste pits. The Indigenous rainforest inhabitants claim they were left with destroyed land, polluted water, and an epidemic of cancer and birth defects.

[pix Abandoned toxic oil dump, Ecuador. Courtesy of Amazon WatchAbandoned toxic oil dump, Ecuador. Courtesy of Amazon Watch © Amazon Watch]

In 1993, the victims sued for damages in the US. Chevron fought for nine years to shift the case to Ecuador, where they may have expected to influence the courts. Chevron fully accepted jurisdiction in Ecuador, where the case began in 2003. Six years later, in light of overwhelming scientific evidence, Chevron realized that they would likely lose. In 2009 the oil company hired the notorious “rescue squad” law firm of Gibson Dunn, found a corporate-friendly Judge, Lewis A. Kaplan in New York, and began a series of SLAPP attacks on the victims, on their lawyers, and on the Ecuadorian judicial system. Over the next five years, Kaplan allowed virtually any Chevron motion, denied defendant motions, mocked the victims and their lawyers, and allowed a RICO racketeering case against two Ecuadoreans — Secoya Indigenous leader Javier Piaguaje and farmer Hugo Camacho — and their American lawyer, Steven Donziger.

Meanwhile, in Ecuador, the Indigenous and peasant villagers won a $9.5 billion compensation judgment, confirmed by appellate courts and by Ecuador’s Supreme Court (Court of Cessation). In response, Chevron sold its assets in Ecuador, fled the country, refused to pay, and threatened the victims with a “lifetime of litigation.”

The company has since retained over 60 law firms, 2,000 lawyers, paralegals, six public relations firms, squads of private investigators, and at least one bribed witness, who later admitted to lying. Lawyers for the victims estimate Chevron has spent over $2 billion to avoid payment of the court judgement, the largest collection of SLAPP suits in history.

Gibson, Dunn & Crutcher (Gibson Dunn) promotes itself as a corporate “rescue squad” specializing in “shielding clients” from “billions in liability”. They boast of getting George W. Bush installed as US president by stopping a Florida vote recount, and shielding Lehman Brothers from liabilities in the largest bankruptcy filing in U.S. history.

Randy Mastro co-chairs the firm’s litigation department; infamous for a string of court censures for fabricating evidence, lying and other criminal misconduct. In 2015, the High Court of England sanctioned Gibson Dunn for fabricating evidence to frame the political rival of the firm’s client, the President of Djibouti, Africa.

In 2005, a federal court in California sanctioned Gibson Dunn for tampering with a witness, “obstruction, gamesmanship and flagrant disregard” of Court orders.In 2007, the Montana Supreme Court assessed a $9.9 million fine against Gibson Dunn for “blatantly and maliciously trying to intimidate” its adversary, using the judicial system for “legal thuggery”. The following year, a New York federal judge sanctioned the firm for “unacceptable shenanigans”, including hiding documents and outright lies. A California federal judge concluded that the firm’s misconduct is “a product of a culture which permeates” Gibson Dunn.

As Chevron faced losing the pollution case in Ecuador, CEO John Watson and General Counsel R. Hewitt Pate turned to Gibson Dunn’s “rescue squad” for help. The lawyers, led by Mastro, soon revealed their abusive tactics. An Oregon federal judge sanctioned the Gibson Dunn lawyers for using the discovery process — intended to provide information to opposing counsel — to harass a small legal non-profit assisting the Ecuadorian victims. In Ecuador, appellate judges rebuked Chevron’s new lawyers for threatening trial Judge Nicolas Zambrano with criminal charges and prison unless he dismissed the case.

However, the Ecuadorian decision stood, Chevron owed its victims $9.5 billion, and Randy Mastro went to work harassing the victims, their lawyers, and the Ecuadorian justice system before a gleefully encouraging Judge Kaplan in New York.

Judge as prosecutor

Chevron and Gibson Dunn knew precisely whoJudge Kaplanwas, when they launched their series of SLAPP suits through his court.

In 2004, Kaplan allowed the NY Police Department to arrest any “recognizable group” of 50 or more cyclists riding together, as a way of stopping bicycle protests, specifically by the environmental group Critical Mass. Although the First Amendment of the US Constitution protects “freedom of assembly”, Kaplan argued that “traffic flow” held precedent over the right of citizens to assemble in peaceful protest. When Lehman Brothers employees sued Lehmans for failing to protect their pension plan, violating the Employee Retirement Security Act, Kaplan simply dismissed the case.

At The Robing Room, a judicial review forum, one commenter warned, “if you are representing big business interests, Judge Kaplan will find a way to rule in your favor. If you going up against big business interests, you are out of luck.” Others describe Kaplan as “working for business interests” and “part of the old-boy network.”

“We knew that Gibson Dunn and Chevron had selected Judge Kaplan as an ally,” said Steven Donziger, lawyer for the original Ecuadorian plaintiffs, Frente de Defensa de la Amazonía (FDA). “A normal judge’s responsibility is to insure impartiality, decorum, and legal integrity. In the RICO SLAPP suit, Kaplan served more as a member of the prosecution team. He mocked defendants, laughed at defense motions, praised Chevron, granted their every wish, and insulted the entire Ecuadorian justice system.”

Marathon of preliminaries

The highly unusual three year discovery and deposition process, prior to the actual trial, revealed a succession of nightmarish legal irregularities:

No media confidentiality: The SLAPP began in April 2010, when Kaplan forced filmmaker, Joseph Berlinger to turn over 600 hours of outtakes from his acclaimed 2009 documentary, Crude: The Real Price of Oil. Kaplan ridiculed the journalist’s request to protect confidential sources. “If this is your best argument,” jeered Kaplan, “you’re in a lot of trouble.” A media coalition — including The New York Times, NBC, and HBO — filed a First Amendment objection with the court, and Robert Redford, writing in the Huffington Post, called the decision a “shocking” betrayal of US First Amendment rights.

Insulting a foreign Court: Kaplan and Chevron lawyer Mastro used the Berlinger hearings to insult the courts in Ecuador, where Chevron had insisted the trial be held. Mastro called the Ecuador courts “a sham” that would cause “any American to shudder at … what passes for a judicial system.” Kaplan openly laughed when asked to delay until an Ecuadorian court could provide input. “If this were the High Court in London,” Kaplan taunted, “you can be sure I’d wait.” Despite Mastro and Kaplan’s disdain here, the Ecuadorian justice system appears as impartial and honourable as any such system in any modern nation.

Insulting the defendants: Throughout the proceedings and in written memoranda, Kaplan referred to the 30,000 class-action victims in Ecuador as “so-called plaintiffs”, suggesting that their “standing in this matter is debatable to say the least.” He referred to their case in Ecuador as “the game” and “not a bona fide litigation.” When Donziger’s attorney made a routine request for time to review thousands of documents, Kaplan scoffed, “Don’t tell me about how long Mr. Donziger needs. I know the game here.”

No attorney-client confidentiality:Kaplan invoked a minor technicality to claim that Donziger, the victims’ US lawyer, had “waived” all attorney-client privilege, and insisted he turn over to Chevron lawyers 17-years of confidential communications with his clients, including, emails, notes, and his entire hard drive. Defense attorneys called this “the most sweeping forced production of privileged documents in history.”

Monster deposition: Federal rules typically limit individual depositions to one day, possibly two days in extraordinary cases. Once Chevron had all of Donziger’s confidential client files, they forced him, with Kaplan’s approval, to endure an unorthodox 18 days of discovery deposition, during which 20 or more Chevron/Gibson Dunn lawyers pelted him with petty and personal questions. According to Donziger’s RICO case rebuttal, Chevron’s lead PR consultant, revealed in 2009: “Our L-T [long-term] strategy is to demonize Donziger.”

Special Master: Judge Kaplan appointed his former law partner, Max Gitter, as “Special Master” or private judge to rule over the protracted deposition, paid entirely by Chevron. According to the Amazon Defense Coalition, Kaplan approved secret payments to Gitter, totaling “likely well over $1 million.” Like Kaplan, Gitter approved Chevron requests and dismissed defense requests. He revealed his conspiratorial relationship with Mastro and Chevron when he made a ruling based on the contents of a future Chevron document that had not yet been filed with the court. Upon realizing his error, he muttered, “Mr. Mastro, am I correct about that?” Mastro responded, “absolutely correct.”

Judge proposes Chevron strategy: During the discovery hearings, Judge Kaplan exclaimed: “Do the phrases Hobbs Act, extortion, RICO, have any bearing here?” signaling to Chevron lawyers that they should file a racketeering complaint. Shortly thereafter, on February 1, 2011, Chevron filed their RICO complaint against Donziger, Piaguaje, and Camacho, claiming that the 10-year case before three levels of Ecuadorian courts amounted to criminal extortion. Chevron asked for billions of dollars in damages, from Donziger, a sole practitioner, and two impoverished villagers, which required a jury trial. Kaplan accepted the claim and assigned the case to himself.

International powers: After the RICO filing, Judge Kaplan presumed to issue a universal injunction, allegedly prohibiting any court in any nation from enforcing the environmental judgment against Chevron, two days before the Ecuadorian court announced that judgment. In September, 2011, the US Court of Appeals vacated the injunction, chastizing Kaplan for inflicting damage on international comity, the principle among modern nations to show respect for each other’s legal systems.

Implacable hostility: By this time, Donziger and the Ecuadorian victims were almost broke, which Donziger claims, “was the whole point of Mastro’s and Chevron’s strategy.” Nevertheless, renowned defense attorney, John Keker, a former US marine, highly respected for legal integrity, offered to help the beleaguered defendants. “This case has degenerated into a Dickensian farce,” Keker said. “Encouraged by this Court’s implacable hostility toward Donziger, Chevron will file any motion, however meritless, in the hope that the Court will use it to hurt Donziger.”

Fishing expeditions: Chevron served Donziger, Piaguaje, and Camacho, with hundreds of new document requests and over a thousand “requests for admission,” disputed claims that Chevron could argue were “admitted” if the defendants could not respond. The impoverished Ecuadorian peasants kept almost no documents and rarely engaged in written communication. The requests imposed a massive new expense for the defendants. Kaplan also allowed Chevron to serve subpoenas on Amazon Watch, Google, Microsoft, and others, seeking email accounts to track the activities of some 100 lawyers, students, journalists, and academics that supported the Ecuadorian’s cause. “These were fishing expeditions,” Donziger explained, “that violated everyone’s right to privacy.”

Scorched Earth: By May 2013, before the actual trial had even begun, the defendants were thoroughly destitute, and their defense attorneys — Keker and Craig Smyser, who had been deferring payment — could no longer continue. Both attorneys expressed outrage at Kaplan’s refusal to grant common sense measures to streamline the burdensome process. “Through scorched-earth litigation, executed by its army of hundreds of lawyers,” said Keker, “Chevron is using its limitless resources to crush defendants and win this case through might rather than merit.” Smyser, called the lawsuit a “legal blitzkrieg” that Kaplan not only tolerated but “encouraged”.

After four years of gruelling discovery depositions and document demands by Chevron — the exhausted defendants’ best hope for justice rested on the trial jury. A jury would remove some decision-making power from Kaplan, and would hear overwhelming evidence of Chevron pollution and legal misdeeds. However, Kaplan had new surprises in store.

[pix Ecuadorians and P. Bellegarde, court, 2018 © Johanna LunaHugo Camacho, Amazon Defense Coalition (second from left) was one of the villagers named in the US RICO case. Here, he joins Domingo Paes, Achuar; Canadian Assembly of First Nations Grand Chief Perry Bellegarde, Janeth Cuji, Kichwa; and Rafael Pandam, President of the Indigenous Amazonian Parliament of Ecuador, in a Canadian court © Johanna Luna]

The RICO Trial

No jury: On the eve of the trial, Chevron decided, with Kaplan’s approval, to drop their financial damages claim, which meant that Kaplan could drop the jury and decide the outcome himself. “Chevron,” said Donziger, “apparently panicked at the notion of trying to sell their fraud and extortion claims to anyone other than Kaplan.” The defense demanded a jury trial, based on their right to a jury in a RICO case, a long-standing legal principle in cases that carry criminal implications. Kaplan refused. He would decide himself about the defendants’ guilt or innocence.

No pollution talk: Even though Kaplan had presumed the authority to “set aside” an Ecuadorian environmental judgment with a 10-year, 220,000-page evidentiary record of Chevron’s environmental crimes, and to characterize that entire proceeding as an act of “extortion,” the corporate-friendly judge barred the defense from even mentioning anything “related to the existence of pollution in Ecuador.” The pollution, he said, was “not relevant.”

No dirty-tricks talk: Furthermore, Kaplan ruled that the defense could not mention evidence of Chevron’s campaign or Gibson Dunn’s campaign of “dirty tricks” operations, past courtroom crimes, lies, and fabricated evidence. Chevron, of course, was allowed to discuss any alleged history of the defendants, dredged up from four years of ruthless depositions, spies, and private investigators.

Tsunami of paper: On the first day of trial, Chevron placed over 2,500 exhibits into evidence en masse, nearly 10,000 separate assertions, to which the impoverished defense was given less than a week to respond. If they failed, Kaplan could deem the defendants’ objection “waived.”

Anonymous witnesses: Kaplan accepted testimony from Chevron witnesses whose identity they kept hidden from the defense,preventing the normal investigation necessary for effective cross-examination. The defense expressed outrage at this violation of “basic legal principles,” which they said would “be right at home in the Spanish Inquisition.”

Editing the evidence: At this point, the defense caught Randy Mastro presenting edited video, in which he had cut out critical contextual words from Mr. Donziger’s comments. According to trial transcripts, when the defense brought this to the judge’s attention, Kaplan adjourned, did some research, and responded: “About 15 words were edited out … I assume there was no attempt to mislead.”

Chevron’s claim that the entire Ecuadorian judicial process — ten years of court trials and appellate reviews in three levels of courts — had been “fraudulent” rested, however, almost entirely upon one, single witness.

[pix Steven Donziger at oil well © Lisa GibbonsSteven Donziger, lawyer for the Ecuador plaintiffs for 25 years, at oil site in Ecuador’s Amazon © Lisa Gibbons

The Witness]

In American Lawyer magazine, in 2009, David Hechler, describes Gibson Dunn’s “game plan,” to shield clients from liability in foreign pollution cases: “find witnesses” who will accuse the foreign court of “fraud.” In a separate American Lawyer story, Gibson, Dunn lawyer Robert Cooper, explains, “We prepared the witnesses to tell our story.”

In Ecuador, on behalf of Chevron, Gibson Dunn found one such witness, Alberto Guerra, a former Ecuadorian judge who had been removed for misconduct, including accepting bribes. According to Amazon Watch, Chevron lawyer Andres Rivero and Chevron private investigator Yohi Ackerman paid Guerra $48,000 in cash, and agreed to pay him $12,000 a month for at least three years. Chevron lawyers allegedly negotiated and smoothed Guerra’s immigration into the US, paid for his family to move, hired lawyers to get them green cards, and bought them a car, auto insurance, and health insurance.

[ pix Justice Now protest, Ecuador. Photo courtesy of amazonwatch.orgJustice Now protest, Ecuador. Photo courtesy of amazonwatch.org © Amazon Watch]

According to a letter from the defense to the US Department of Justice, Chevron has paid Guerra at least $2 million in cash and benefits, in exchange for false testimony. According to an affidavit by legal ethicist Erwin Chemerinsky— Founding Dean of the University of California at Irvine School of Law and a prominent US legal scholar — these payments to Guerra violated fundamental ethical rules of law.

In New York, over 53 days by Guerra’s admission, Gibson Dunn’s Randy Mastro helped him prepare his testimony about “fraud” in Ecuador. On the stand before judge Kaplan, Guerra claimed that Ecuadorian lawyers promised presiding judge Nicolas Zambrano $500,000 to allow them to write the final judgment, which Guerra claimed they gave to Zambrano on a flash drive. Guerra also claimed that he possessed a draft copy of the fraudulent judgment and that he met with the plaintiffs’ American lawyer Steven Donziger to discuss the alleged “bribe”.

Quickly, however, Guerra’s story fell apart. Immigration records showed that Donziger was not even in Ecuador when Guerra claims the meeting took place. No evidence of a flash drive was ever produced, and Guerra’s computers did not turn up the draft judgment, or even a single email from the plaintiffs’ attorneys. When this came to light, Guerra changed his story, claiming that after “strengthening my memory” he now recalled working on this draft, not at home, but rather had taken an eight-hour bus ride into the jungle, where he claimed he edited the judgment on a laptop handed to him by one of the Ecuadorians’ lawyers.

However, this story crumbled as well when forensic analysis showed that the trial judge had never downloaded the judgement from a flash drive and, rather, had opened and saved his own written judgement document more than 400 times over three months on his own office computer.

Furthermore, after the RICO trial, in a separate arbitration under the US-Ecuador Bilateral Investment Treaty, Guerra admitted under oath that he had lied to Chevron’s lawyers about his involvement in the alleged attempt to influence the Ecuadorian judgement. “I did exaggerate about [some things], yes,” said Guerra under questioning. When a lawyer asked him, “And among the ways you tried to leverage your position was to falsely tell the Chevron representatives that the Plaintiffs had offered you $300,000?” Guerra answered, “Yes, sir. I lied there.”

Nevertheless, Kaplan accepted Guerra’s testimony and rejected defense efforts — Motion to strike testimony and Motion for terminating sanctions — to strike Guerra’s testimony, which the defense claims was fabricated during the 53-day session with Chevron lawyers.

The final twist appeared as Judge Kaplan crafted a judgment. By dropping the money claim, Chevron had avoided a jury but also undermined its own case. A plaintiff must seek either money for damages or an injunction, a court-ordered condition placed on the defendant. The Court of Appeals had already reversed Kaplan’s earlier injunction and could do so again. Without a money claim or injunction, Chevron lacked standing.

Perhaps to avoid this problem, Kaplan based his guilty verdict on a “non-statutory claim for equitable relief” from an allegedly fraudulent judgment.According to Donziger’s rebuttal, the decision lacked “due process,” since the claim had never been presented by Chevron or argued in court, and “relied on vague 18th and 19th century treatises” that “had been effectively repealed and replaced by the statutory framework for enforcement of foreign judgments … during the twentieth century.” Typically, a judge can’t invent a new claim for the plaintiff after a trial has ended.

The Republic of Ecuador filed an Amicus Brief, stating that “Judge Lewis Kaplan reached far beyond the issues presented to unfairly—and unnecessarily—impugn the integrity of the Republic of Ecuador.” They stated that Kaplan’s “unfounded commentary”, against a “sovereign democracy”, was based on “unreliable evidence”. The Ecuadorian court charged that Kaplan relied almost exclusively on one Vladimiro Álvarez Grau, an avowed political opponent of the Ecuadorian government. “Chevron sought out a favorable forum,” the Ecuadorian court wrote. “The District Court [Kaplan], fulfilling Chevron’s wishes, chose to make far-reaching judgments based primarily on the opinions of a single partisan.”

Finally, the Ecuadorian court confirmed that Chevron Corporation remained responsible for the impact of its pollution.“In 2005,” the court wrote, “ChevronTexaco dropped the name ‘Texaco’ and reverted to its original name, Chevron Corporation. There is no indication in the record before us that shortening its name had any effect on ChevronTexaco’s legal obligations. Chevron Corporation therefore remains accountable.”

Furthermore, in a separate discovery hearing, the US Third Circuit court cautioned: “The circumstances supporting [Chevron’s] claim of fraud largely are allegations and allegations are not factual findings.”

This historic SLAPP lawsuit, possibly the most expensive in history, appears to have failed, even after Kaplan’s decision.Foreign courts have ignored Kaplan’s injunction, and Donziger and his clients are making progress in Canadian courts, where the victims are attempting to collect the Ecuadorian judgment by seizing Chevron Canada’s assets, and where they have won three consecutive unanimous appellate court decisions. Donziger and the Ecuadorian villagers have said they would welcome Chevron to claim in Canada that the Ecuadorian judgment was fraudulent. “If they had to bring Guerra to Canada before a neutral judge,” says Donziger, “we believe the company’s entire RICO narrative will collapse.”

SLAPP suits represent a threat to public protest and free speech. They have no place in a democracy.

References and Links

Ecuador Supreme Court (Court of Cessation): court ruling in Ecuadorean class action vs. Chevron Corporation.

ACLU, Slapped: A Tool for Activists: ACLU

Chevron assets: Fortune magazine.

Chevron: 60 law firms and 2000 lawyers: Amazon Watch, CSR.

Chevron threatens plaintiffs with a “Lifetime of litigation.”: (1) “Chevron Accused of $2 Million Witness Bribery Plot in Ecuador Pollution Case, Alternet, January 31, 2018; and (2) Writ of Mandamus, Feb. 6, 2011: pdf

Gibson Dunn, “rescue squad,” “shielding clients”: Gibson Dunn promotions

Gibson Dunn censure by High Court of England: “Chevron Law Firm Gibson Dunn Blasted by High Court of England For Falsifying Evidence: Chevron Pit, March 25, 2015.” Montana Supreme Court assessed a $9.9 million fine against Gibson Dunn: Montana Supreme Court document, 05-378, 2007, MT 62.

Ecuador, appellate judges rebuke Chevron’s lawyers for threatening trial Judge Nicolas Zambrano.

Gibson Dunn in Ecuador: under scrutiny for trying to mislead Congress

California, 2005, censure of Gibson Dunn

Gibson Dunn sanctioned by a federal judge for harassing a witness in a discovery action in Oregon.

Comments about Judge Lewis A. Kaplan on legal review site: The Robing Room

Robert Redford objects to Kaplan denial of media confidentiality: Huffington Post

New York Times, NBC, and HBO file a First Amendment objection with the court. NPR

Kaplan and Mastro insult the courts in Ecuador: “Writ of Mandamus, US Court of Appeals, Second Circuit, Hugo Gerardo Camacho Naranjo and Javier Piaguaje Payaguaje, petitioners, filed by Attorneys: James E. Tyrrell Jr. NY, Julio C. Gomez, NY, and Carlos A. Zelaya, II, Feb. 6, 2011: pdf

Allegations of bias by Kaplan: Writ of Mandamus, Feb. 6, 2011: pdf; and “Chevron’s RICO Fraud” pdf

“Our L-T [long-term] strategy is to demonize Donziger.” — Chevron’s lead PR consultant, 2009: (1) “Chevron’s RICO Fraud” pdf and (2) “Chevron Accused of $2 Million Witness Bribery Plot in Ecuador Pollution Case, Alternet, January 31, 2018

Chevron’s RICO Fraud: An Abuse of Indigenous Peoples, the Environment, and U.S. Courts in the Chevron v. Donziger Case; S. Donziger and the Ecuadorian Legal Team: pdf.

Defendant’s right to a jury in a RICO case: CSR, 6 February, 2014.

Defense calls anonymous witnesses a violation of “basic legal principles … right at home in the Spanish Inquisition.”: US District Court, Southern District of New York, Case 1:11-cv-00691-LAK-JCF Document 1154 Filed 05/14/13, “Opposition to Chevron’s Motion for an order to Further protecting the Confidential declaration of Doe3.”

Gibson Dunn “game plan”: (1) “District Court Denies Enforcement of $97 Million Nicaraguan Judgment,” Gibson Dunn; and (2) “The Kill Step,” David Hechler, Sept. 20, 2009, The American Lawyer

Randy Mastro and Gibson Dunn lawyers preparing Guerra over 53 days: Huffington Post, Paul Paz y Miño, May 30, 2017.

Guerra bribed by Chevron: (1) “Chevron Accused of $2 Million Witness Bribery Plot in Ecuador Pollution Case, Alternet, January 31, 2018; (2) “Chevron’s RICO Fraud,” legal rebuttal: pdf. Guerra bribed by Chevron: Huffington Post, Dec. 6, 2017; (3) “Chevron Executives Misused Millions of Shareholder Dollars To Bribe a Witness,” Amazon Watch, May 30, 2017.

Alberto Guerra admits lying in RICO testimony: (1) US Court of Appeals for the Second Circuit, Chevron Corporation vs. Steven Donziger, Hugo Gerardo Camacho Naranjo, et. al.; No. 14-826-cv(L), November 5, 2015. (2) “Chevron’s Star Witness Admits to Lying in the Amazon Pollution Case, Vice News, Eva Hershaw, October 26, 2015 (with Testimony from arbitration under the US-Ecuador Bilateral Investment Treaty); (3) U.S. Courts Endorsed Chevron’s Fabricated Evidence: Ecuadorian Villagers and Counsel Slam Chevron’s Star Witness for Lying and Offer Rebuttals to 12 False Findings by Second Circuit Court of Appeals”: CSR wire, May 16, 2017; and (4) Chevron’s RICO Fraud: pdf.

“Judge Kaplan Drastically Overreached With “Unlawful” Injunction To Protect Chevron, International Law Experts Say,” Rainforest Action Network.

Defense documents requesting to strike Guerra’s false testimony, citing evidence that Guerra lied, and admitted to lying: (1) Motion to strike testimony of Alberto Guerra Bastides, pdf and (2) Motion for terminating sanctions, pdf.

“Rainforest Groups Blast U.S. Judge Kaplan for Ruling Designed to Help Chevron Evade $9.5b Pollution Liability,” CSR wire, March 9, 2018.

Republic of Ecuador’s Amicus Brief denouncing the Kaplan judgement based on false testimony from a bribed witness, and denouncing Kaplan’s insults toward Ecuadorian courts.

US Third Circuit court, Chevron’s claim of fraud are allegations, not facts: Writ of Mandamus, US Court of Appeals, Case: 11-2259, 06/02/2011.

Kaplan’s judgement based on 18th and 19th century treatises: Judgement transcript: District Court, Southern District of New York: Case 1:11-cv-00691-LAK-JCF, Document 1874, Filed 03/04/14, Page 330 of 497.

Chevron lacked standing: (Article III , U.S. Constitution; the US Supreme Court has held that federal courts may hear “cases and controversies” but many not simply issue advisory opinions if there is no claim for “relief.”

“In Canada, Chevron Faces New Risks From $12b Ecuador Pollution Judgment As Shareholders Step up Pressure,” Amazon Defense Coalition, FDA, March 23, 2018

==

ref2

https://www.huffpost.com/entry/chevrons-ghostwriting-cha_b_7191074

no lnx many

Karen Hinton  Contributor

Chief Strategy Officer/Fenton

Chevron’s “Ghostwriting” Charge Unraveling in Ecuador Pollution Case

05/05/2015 10:38 am ET Updated Dec 06, 2017

Will U.S. Appellate Court Consider New Evidence Or Close Its Eyes?

Chevron’s “ghostwriting” charge against Ecuadorian villagers and their attorneys, who together have held the oil giant accountable for toxic dumping in the Amazon rainforest, is unraveling.

In the unraveling is a string of “missing” serial numbers on USB drives or flash drives that Chevron’s lawyers and forensic experts have failed to produce.

Before I explain, though, let me set the scene.

The Ecuadorian villagers, who two decades ago sued Chevron for intentionally contaminating their ancestral lands in the Amazon rainforest, have obtained a game-changing forensic report  that blows apart Chevron’s fake narrative that it was the victim of a fraud.

This report, explained by Courthouse News,  concluded that Chevron’s explosive charge that lawyers for the villagers “ghostwrote” a $9.5 billion Ecuador judgment against Chevron is a crock.

I say “game-changing” because the forensic report — by J. Christopher Racich, one of the leading experts in the field of computer forensics — will be used by the villagers in enforcement courts in Canada, Brazil and possibly other countries to prove the judgment is valid and Chevron has been falsifying evidence.

Arrogantly, Chevron has refused to pay the $9.5 billion to clean up its toxic mess, forcing the Ecuadorians to try to seize company assets in other countries. Chevron previously sold off all of its assets in Ecuador to make itself judgment proof even though it insisted the trial be conducted in the courts of the South American country.

This new forensic analysis found that the 188-page Ecuador judgment was written gradually over a four-month period, from October 2010 to February 2011, when the Ecuador court issued the ruling. (See the 20-page report here.) Importantly, the report also found no evidence “that a litigation document was transferred to (the judge’s) computers while he was drafting the judgment.” (Racich reviewed the hard drives of the two computers used by the Ecuador judge to write the judgment against Chevron.)

After losing the case in its chosen forum of Ecuador, Chevron filed a retaliatory “racketeering” lawsuit against the villagers and their lawyers in the U.S. in a last-ditch attempt to try to block enforcement of the judgment. (See my previous blogs for more details about the history of the case.) This new recent forensic analysis was conducted after that trial for a separate but related arbitration claim filed by Chevron against the Government of Ecuador.

This finding could be the most important one in this seemingly never-ending litigation.

That’s because Chevron General Counsel R. Hewitt Pate and his top lawyer, Randy Mastro of the controversial law firm Gibson Dunn & Crutcher (which recently was found by the High Court of England to have falsified evidence  in another case), hoped the forensic analysis would corroborate testimony by their discredited witness, Alberto Guerra.

[2015-05-01-1430506034-8262307-photomastro.jpeg

Chevron Lawyer Randy Mastro

2015-05-01-1430505960-2939122-photoGuerra.jpeg

Chevron’s Discredited Witness Alberto Guerra]

Chevron has paid Guerra an estimated $2 million in cash and benefits and moved him and his family to the U.S., apparently in exchange for his testimony. The former Ecuador judge is an admitted criminal; he testified under oath to taking numerous bribes before he was removed from the bench. See here.

After being coached for 53 straight days by Chevron’s lawyers, Guerra testified in a U.S. court that one of the Ecuadorians’ lawyers gave the Ecuador judgment to Judge Nicolas Zambrano in late January 2011, just days before the judgment was issued. Racich found no evidence that this occurred.

Meanwhile, neither Chevron nor the arbitration panel hearing the company’s claim that it has not been treated fairly in Ecuador’s court system has released Chevron’s own forensic analysis of the judge’s computers conducted by Spencer Lynch of the New York-based digital firm Stroz Friedberg. From various legal motions filed in the arbitration and the Racich report, though, we know this:

Chevron expert Lynch agrees with Racich that no evidence exists that documents having to do with the judgment were transferred to Zambrano’s computers during the period of time that he was writing the judgment between October 2010 and February 2011, directly contradicting Guerra’s testimony.

However, here is where the plot thickens.

The 32-year-old up and coming Stroz Friedberg examiner, based in London and schooled at Duke University, claims that five USBs he obtained from Guerra were connected to Zambrano’s computers.

The only problem is that nothing — as in zero — has been found on Guerra’s computer that resembles the judgment, even though he testified at one point the judgment was on his computer. (We note that Guerra and Zambrano served on the same court at one time and it would not have been unusual for them to share documents.)

And, finally, the Chevron bombshell:

Lynch did not provide the serial numbers of the five USBs.

Now, forensic experts never forget to write down the serial numbers of flash drives. That would be like a police officer forgetting to write down the tag number of a speeding car he’s stopped.

Here’s what Racich had to say about Lynch’s missing serial numbers.

“Because the serial numbers were not recorded by (Chevron’s) forensic examiners from Mr. Guerra’s original USB devices (a standard and fundamental step during imaging of any Computer equipment), no forensic examiner can conclude with a degree of scientific certainty that the images currently in our possession are of the USB devices that were attached to Mr. Zambrano’s computers....

“In a forensic case involving the acquisition of electronic data, it is highly unusual that these serial numbers were not recorded — Stroz Friedberg recorded them for all other devices they imaged from Mr. Guerra .... Without this information, Mr. Lynch is merely speculating that the USB images taken from Mr. Guerra’s USB devices that we have both examined are in fact the same USB devices that were attached to Mr. Zambrano’s computers.”

Forgot the serial numbers? Mistake? Not a chance. Holding back the serial numbers allows Chevron’s lawyers to do nothing but sow seeds of doubt when, in truth, they have nothing but bad news in their own forensic analysis.

During the recent oral argument in the appeal of the “fraud” charges, Judge Richard Wesley of the United States Court of Appeals for the Second Circuit indicated a “dispute” existed among the three judges on whether they could consider the Racich report in the appeal. Significantly, the lower court judge in that extremely problematic case did not have the Racich report.

I realize that sometimes evidence obtained after a trial cannot always be used in an appeal, but we are talking about delaying and possibly denying justice to tens of thousands of Ecuadorians because they could not afford the costs to do the same forensic analysis prior to the “fraud” trial and Chevron could afford to pay a witness up to $2 million.

We also are talking about the reputation of human rights lawyers Steven Donziger* and Pablo Fajardo, who should have a legal path of some sort to clearing their names.

I don’t know about you, but I will take the word of a highly-respected American forensic expert with a stellar reputation over a self-confessed corrupt judge who’s been paid a king’s ransom by an oil company trying to evade responsibility for its contamination.

PS: If Stroz Friedberg sounds familiar to you, it’s because that’s the firm Chevron lawyer Mastro hired to conduct a forensic analysis of the State of New Jersey’s computers, used by Governor Chris Christie and his entourage of political appointees involved in Bridgegate.

Mastro’s “independent” and “exhaustive” review of Bridgegate produced no incriminating findings.

Meanwhile, indictments against the Governor’s political staff have been handed down by the U.S. Attorney’s office.

It would appear Stroz Friedberg and Mastro “missed” something again.

*Disclosure: I work pro-bono for a group of indigenous Ecuadorians and their U.S. legal adviser, Steven Donziger, to help hold Chevron accountable for one of the world’s largest environmental disasters in the Amazon rainforest. From May 2008 to March 2013, I was paid by Donziger to represent the Ecuadorians as their U.S. media spokesperson.

==

punked by api

https://theintercept.com/2019/04/03/branded-content-fossil-fuel-companies/

===

Lewis A. Kaplan (born December 23, 1944)^[1] is a United States District Judge for the Southern District of New York. He took senior status on February 1, 2011.

Born in Staten Island, New York, Kaplan received an A.B. from the University of Rochester in 1966 and a J.D.from Harvard Law School in 1969. He served as a law clerk for Judge Edward McEntee, U.S. Court of Appeals, First Circuit, from 1969 to 1970. Kaplan was in private practice in New York City from 1970 to 1994 and was a Special Master, U.S. District Court for the Southern District of New York, from 1982 to 1983.

On May 5, 1994, Kaplan was nominated by President Bill Clinton to a seaton the United States District Court for the Southern District of New York vacated by Gerard Louis Goettel. He was confirmed by the United States Senate on August 9, 1994, and received his commission on August 10, 1994. He took senior status on February 1, 2011, and was succeeded by Judge Ronnie Abrams.

Kaplan presided over the first case where charges against a Guantanamo captives were laid in a civilian court. On February 9, 2010, Kaplan ordered Ahmed Ghailani's Prosecution to review the record of Ghailani's detention in the CIA's network of black sites.^[2] According to the New York Times any materials that show the decisions “were for a purpose other than national security,” must be turned over to Ghailani's lawyers.

Kaplan denied a motion to dismiss the charges on the grounds that due to Ghailani's long extrajudicial detention he was denied the constitutional right to a speedy trial, ruling that his extended incarceration had no adverse impact on Mr. Ghailani’s ability to defend himself. This cleared the way for federal prosecutors to try him for his suspected role in Al Qaeda’s 1998 bombings of embassies in Kenya and Tanzania.^[2]

The New York Times reported that Kaplan's ruling could set a precedent for the cases of other Guantanamo captives, who, like Ghailani, are transferred to the civilian justice system. On January 25, 2011, Kaplan sentenced Ghailani to life, and called the attacks "horrific" and saying the deaths and damage they caused far outweighs "any and all considerations that have been advanced on behalf of the defendant." He also ordered Ghailani to pay $33 million as restitution.^[3]

Working in New York City, Kaplan had been the judge in a number of federal racketeering cases involving Mafia members. In April 2010, Judge Kaplan was assigned to preside over the cases of 14 Gambino crime family members arrested on charges, among others, of racketeering, racketeering conspiracy, witness tampering (in the 1992 trial of John Gotti), and sex trafficking of a minor.

Kaplan has presided over a number of notorious cases at the district level, including Bridgeman Art Library v. Corel Corp., Universal v. Reimerdes, Five Borough Bicycle Club v. The City of New York, The People v. Ahmed Ghailani, and Crandell v. New York College of Osteopathic Medicine. .

See also:

• Bridgeman Art Library v. Corel Corp.

===

Kevin D. Williamson comments at NRO:

Chevron, which some years back was presented with a multi-billion-dollar judgment related to pollution claims in Ecuador, has been engaged in a years-long battle against a coalition of lawyers, environmental groups, and activists, and its defense has been an interesting one:Not only has Chevron rejected the specific claims against it, it has maintained that the case is the result of a criminal conspiracyinvolving those same lawyers and environmentalists, corrupt judges, bribery, and more. The company’s general counsel, Hewitt Pate, said today: “The case against Chevron was the result of fraud, bribery, and other crimes, and its aim was extortion.”

The story might have struck many as too implausible even for a B movie, but a U.S. district court today issued a remarkable opinion confirming that the judgment against Chevron is indeed the result of fraud. (The complete, 500-page opinion is here.) District Judge Lewis Kaplan writes:

This case is extraordinary. The facts are many and sometimes complex. They include things that normally come only out of Hollywood — coded emails among [lead plantiffs' attorney Steven] Donziger and his colleagues describing their private interactions with and machinations directed at judges and a court appointed expert, their payments to a supposedly neutral expert out of a secret account, a lawyer who invited a film crew to innumerable private strategy meetings and even to ex parte meetings with judges, an Ecuadorian judge who claims to have written the multibillion dollar decision but who was so inexperienced and uncomfortable with civil cases that he had someone else (a former judge who had been removed from the bench) draft some civil decisions for him, an 18-year old typist who supposedly did Internet research in American, English, and French law for the same judge, who knew only Spanish, and much more.

The questionable conduct ranges from the spectacular to the banal: There were bribed judges, to be sure, but there were also articles in The Huffington PostandPoliticoauthored by former Andrew Cuomo and DNC aide Karen Hinton, who, according to court documents, as a public-relations consultant had attempted to negotiate for herself a “success fee” of “at least 5 percent” of fees related to settlement of the case, along with a $10,000-a-month retainer and expenses. Writing in *Politico*, Hinton asked: “I do advocacy work. So why am I accused of being part of a criminal conspiracy? . . . Chevron has charged that the Ecuadorian ‘conspirators’ and their ‘co-conspirators,’ like me, lied, manufactured evidence about the contamination, and committed fraud.”

According to Judge Kaplan’s opinion, that’s about right.

What’s notable here is that Chevron’s complaint is under the RICO law, meaning that it implies the existence of an ongoing criminal organization. What we have here, if the U.S. District Court for the Southern District of New York is correct, is the new face of organized crime, and one of the most spectacular attempts at extortion in recorded history.

I’ve been following the case for a while and will have more to say when I’ve gone through the documents, but the decision is a very bad one for everybody who had a part in the case — from prestigious law firms to environmental groups – especially those with a financial interest in its outcome. Setting aside the legal reasoning and looking only at the findings of fact in the case, a great many reputations will need reconsidering.

In the interest of full disclosure, I note that Chevron has occasionally advertised in National Review, and has in the past donated to the National Review Institute.

Kaplan was a law clerk for former federal appeals Judge Edward McEntee for the United States Court of Appeals for the First Circuit from 1969 to 1970 before entering private practice in New York City until 1994.^[1]

Judicial career

Southern District of New York

On the recommendation of U.S. Senator Daniel Patrick Moynihan, Kaplan was nominated to the United States District Court for the Southern District of New York by Bill Clinton on May 5, 1994, to a seat vacated by Gerard Goettel. Kaplan was confirmed by the U.S. Senate on August 9, 1994, on a majority voice vote and received commission on August 10, 1994.^[1]

Notable cases

Chevron victory in Ecuadorian pollution case (2014)

United States District Court for the Southern District of New York

     *Chevron Corp. v. Donziger 1:11-cv-00691-LAK-JCF

On March 4, 2014, Judge Kaplan ruled in favor of Chevron, an oil and natural gas company, in a case alleging that a multibillion dollar pollution judgment against it, issued by a foreign court, had been obtained through illegitimate means of fraud and corruption.^[2]

In the underlying case, Judge Nicolas Zambrano of Ecuador found Chevron liable for polluting the Lago Agrio rainforest on February 14, 2011, assessing about $19 billion in damages and fines against the company. Chevron refused to pay the fines or accept responsibility for the pollution, and the company brought this case on U.S. soil, alleging that much of the evidence used to obtain judgment was fabricated by lead attorney Steven Donziger. Donziger denied the allegations, but the evidence against him detailing the fraud upon the court, up to and including bribing Judge Zambrano, was overwhelming. In an almost 500-page ruling, Judge Kaplan noted, "an innocent defendant is no more entitled to submit false evidence, to co-opt and pay off a court-appointed expert or to coerce or bribe a judge or jury than a guilty one."^[2]

Judge Kaplan further noted that Donziger and his team subverted justice in their actions, writing:

”Justice is not served by inflicting injustice. The ends do not justify the means. There is no “Robin Hood” defense to illegal and wrongful conduct. And the defendants’ “this-is-the-way-it-is-done-in-Ecuador” excuses – actually a remarkable insult to the people of Ecuador – do not help them. The wrongful actions of Donziger and his Ecuadorian legal team would be offensive to the laws of any nation that aspires to the rule of law, including Ecuador.^[2]|”|

Donziger pledged to appeal the ruling, calling it an "appalling decision from a deeply flawed proceeding."^[2]

Gitmo detainee tried in U.S. civilian court (2009-2011)

United States District Court for the Southern District of New York

     *[ United States, v. Ahmed Khalfan Ghailani] S10-98-cr-1023-LAK

Judge Kaplan was the first federal judge to preside in a trial of a Guantanamo Bay detainee. On July 2, 2009, Judge Kaplan set a September 13, 2010 trial date for Ahmed Ghailani. Ghailani was charged with numerous crimes, including murder, for his involvement in the killings of 224 people and the injury of thousands more in nearly simultaneous bombings of American embassies in Tanzania and Kenya in 1998. Ghailani, a Tanzanian, was alleged to be a bomb-maker for Osama Bin Laden, though other reports stated he was a cook and bodyguard. He had been held in the facility at Guantanamo Bay since 2006. The death toll from the attacks included 12 Americans.^[3]

On November 19, 2009, the judge overturned his previous decision, finding that Ghailani did not have a right to be represented by his military defense lawyers in a civilian court. The lawyers had been reassigned by the Department of Defense although they were willing to represent the defendant, and the judge had previously allowed it. In the decision, Judge Kaplan found that Ghailani's Fifth and Sixth Amendment rights to due process and effective legal counsel would not be violated by his denial of the request. Despite so holding, the judge commented that there had been "near-insurmountable difficulties created by the U.S. government."^[4]

During the trial, Judge Kaplan refused to allow prosecutors to introduce testimony from a witness whose identity was apparently discovered through interrogators' use of the Central Intelligence Agency's "enhanced interrogation techniques," which may have amounted to torture. A jury eventually found Ghailani guilty only of conspiracy to destroy government buildings, for which there was a possible sentence of 20 years to life in prison. The jury acquitted him of more than 280 other charges, including every count of murder. Observers criticized the proceedings on the basis that the evidence that had been barred would have been admissible if the trial had been held in a civilian court. Judge Kaplan suggested in his opinion that a military commission judge would have excluded the evidence as well, citing restrictions against the use of evidence obtained through torture in military trials.^[5][6]

In January of 2011, although Ghailani had sought leniency due to the fact that he was tortured at a secret CIA detention site, Judge Kaplan imposed the maximum sentence of life in prison. He commented that whatever Ghailani had suffered "pales in comparison to the suffering and the horror" caused by the terrorist attacks.^[5]

Freedom of association vs. law & order in NY (2010)

United States District Court for the Southern District of New York

     *Five Borough Bicycle Club, et al., v. The City of New York 1:07-cv-02448-LAK

Judge Kaplan ruled on February 16, 2010, that the City of New York did not violate the First Amendment when the New York Police Department instituted a new rule that would let them ticket or arrest any "recognizable group" of 50 or more cyclists riding together without first obtaining a parade permit from the Police Department.^[7] 

One of the groups most affected was the organizers of "Critical Mass," a group that held frequent "bike protests" in the city. In 2004, during the Republican National Convention, over 100 cyclists were arrested for disorderly conduct after a group of roughly 5,000 of them rode past Madison Square Garden in protest against former President George W. Bush.^[7]

After the law was passed, the Five Borough Bicycle Club (5BBC) sued the city in 2007, describing the process of obtaining permits as a "bureaucratic nightmare," and challenging the NYPD's assertion that it would ticket or arrest a group of 50 cyclists or more without a permit. The 5BBC asserted that the requirement violated its members' constitutional rights of expressive association, free speech, and to travel; several individual plaintiffs also asserted that the NYPD retaliated and selectively enforced regulations against those who participated in the Critical Mass rides.^[7]

Judge Kaplan asserted his sympathy for the cycling groups' position and acknowledged the inconvenience of the law. Nonetheless, he found that the City of New York had a sufficient interest in facilitating traffic flow and protecting the interests of those on the road, and therefore, that there was no violation of the First Amendment.^[7]

Lehman Brothers retirement income case (2010)

United States District Court for the Southern District of New York

     *In re Lehman Brothers Securities and ERISA Litigation 1:08-cv-05598-LAK

On January 2, 2010, Judge Kaplan threw out a lawsuit involving participants of Lehman Brothers retirement plan filed against fund directors for failing to protect the plan when knowing of the deteriorating condition of the funds. Participants of the fund were seeking to recover damages that directors violated theEmployee Retirement Security Act. There was not enough evidence according to the judge's ruling to determine if Lehman's fund managers were found negligent in handling the retirement funds.^[8]

See also

• United States District Court for the Southern District of New York

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Sludge Match: Inside Chevron's $9 Billion Legal Battle With Ecuadorean Villagers

For more than two decades, energy giant Chevron and Ecuadorean activists, led by American lawyer Steven Donziger, have been embroiled in a contentious lawsuit about who is responsible for contaminating a vast swath of the Amazon

By Alexander Zaitchik August 28, 2014

Read more: http://www.rollingstone.com/politics/news/sludge-match-chevron-legal-battle-ecuador-steven-donziger-20140828#ixzz3Yv9f8Muk

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Bloomberg

paywall

By Paul M. Barrett

September 26, 2013

You know a major corporation really cares about an appellate-court argument when they bring out one of the bar’s big guns. No gun is bigger than Theodore Olson.

In federal court in New York today, Chevron deployed Olson, a former U.S. solicitor general and noted Supreme Court advocate, to convince a three-judge panel to clear the way for a civil racketeering suit the oil company wants to start next month against plaintiffs’ attorney and environmental activist Steven Donziger. Olson, who at the moment is also representing BP in that energy giant’s liability battle in New Orleans over the 2010 Gulf of Mexico oil spill, seemed to get the job done for Chevron....----

amz post excerpt

You know a major corporation really cares about an appellate-court argument when they bring out one of the bar’s big guns. No gun is bigger than Theodore Olson.

In federal court in New York today, Chevron (CVX) deployed Olson, a former U.S. solicitor general and noted Supreme Court advocate, to convince a three-judge panel to clear the way for a civil racketeering suit the oil company wants to start next month against plaintiffs’ attorney and environmental activist Steven Donziger. Olson, who at the moment is also representing BP (BP) in that energy giant’s liability battle in New Orleans over the 2010 Gulf of Mexico oil spill, seemed to get the job done for Chevron.

(Before we go further, let the record reflect that the three-judge panel in New York did not issue an immediate ruling, and it’s always a little risky to predict appellate jurists’ thinking based on their murmurings at oral argument. That said, let’s go for it.)

Today’s skirmishing before the U.S. Court of Appeals for the Second Circuit appeared to focus on the most abstruse of legal doctrines, ranging from mandamus to collateral estoppel. But the real question hovering above the packed courtroom on Foley Square was the future of a $19 billion oil-pollution verdict imposed on Chevron by a provincial trial court in the Ecuadorian rainforest in February 2011. Upheld on appeal by the Ecuadorian judiciary, the judgment—the biggest environmental verdict ever—reflects a finding that Texaco egregiously contaminated the Amazonian jungle when it produced oil there decades ago. (Chevron acquired Texaco in 2001.)

Chevron claims that the verdict, engineered by Donziger, a New York solo practitioner, reflected an elaborate sham: an international conspiracy that included bribery, fabrication of evidence, and coercion. Donziger denies these allegations, although a number of lawyers and scientific experts who have supported him over the years have denounced him and disavowed their past work.

The oil company, for its part, has sued Donziger in federal court in New York under the federal anti-racketeering statute. That suit is one facet of Chevron’s international campaign to resist ever paying a dime of the Ecuadorian judgment. The company doesn’t have any assets to speak of in Ecuador.

In response to Chevron’s counterattack, Donziger and his allies have repeatedly tried to get the U.S. district judge overseeing the racketeering suit, Lewis Kaplan, removed from the case. Donziger’s team contends that Kaplan has shown favoritism toward Chevron and racist disdain for the Ecuadorian pollution victims. Today’s hearing represented what will likely be Donziger’s last try to have Kaplan yanked before the suit against Donziger and his clients commences on Oct. 15.

Olson today dismissed the attack on Kaplan’s integrity as “despicable” and praised the trial judge, a former corporate law firm partner nominated to the bench by President Bill Clinton, as “extremely able, extremely experienced.” The Chevron attorney, a partner with the law firm Gibson, Dunn & Crutcher, argued that Kaplan “has bent over backwards” to be fair to Donziger and his clients. If Kaplan mishandled the upcoming trial, Olson added, Donziger & Co. can appeal the results. Based on their questions and observations, that last argument appeared to appeal to all three judges on the Second Circuit panel, Debra Ann Livingston, Barrington Parker, and Peter Hall.

Donziger attended the arguments but didn’t address the court. Instead, the Ecuadorian plaintiffs were represented by James Tyrrell, a prominent litigator and partner with the firm Patton Boggs. Tyrrell told the Second Circuit panel that Kaplan had defied an earlier procedural order from the appellate court. Kaplan, according to Tyrrell, has indicated he intends to put the very legitimacy of the Ecuadorian judiciary on trial in New York—something that would exceed the trial judge’s authority.

“All that is correctable on appeal,” Judge Parker told Tyrrell. “If you’re right, you’ll win.” The implication of Parker’s comments was that Kaplan should not be preemptively removed. Taking a trial judge off of a case happens “only in the most extraordinary circumstances,” observed Judge Livingston. She hinted that she did not see such circumstances in this case.

Tyrrell didn’t back down. “It is, respectfully, a setup,” he said of the proceedings before Kaplan. Without endorsing that view, Judge Hall of the Second Circuit responded that if Tyrrell’s fears came true, he could address them after Kaplan rules.

Both sides presented their arguments today with skill. Tyrrell, although not as well known as Olson, held his own as an advocate. So many attorneys wanted to watch the arguments that most had to settle for closed-circuit television coverage outside the filled-to-capacity courtroom. Still, more may have been obscured by the session than clarified.

The litigation over responsibility for addressing oil pollution in the Ecuadorian rainforest began in 1993. In addition to the U.S. and Ecuador, countries hosting offshoots of the legal warfare include Argentina, Brazil, and Canada. Hundreds of millions of dollars—maybe $1 billion—have been consumed by lawyer fees and related expenses. So far, though, the endless hearings, depositions, and cross-examinations haven’t cleaned a single waste-oil pit or contaminated jungle stream....

bloomberg-businessweek-chevron-rolls-out-the-big-gun-ted-olson

12 Key Facts Essential to Understanding the Chevron-Ecuador Litigation

1. Steven Donziger Is an Adjudicated Racketeer. The U.S. District...

Donziger

Revisiting Steven Donziger’s fraud against Chevron in Ecuador

A dishonest campaign is underway to rehabilitate disbarred lawyer Steven...

Donziger_Fired

Follow the money: Why disbarred lawyer Steven Donziger was fired by his Ecuadorian clients

Disbarred lawyer Steven Donziger likes to present himself to the...

Gabel

Dutch appellate court rejects Ecuador’s bid to set aside Chevron arbitration win

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